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EXHIBIT 4.4
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SERVICE CORPORATION INTERNATIONAL
AND
THE BANK OF NEW YORK
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1998 SENIOR INDENTURE
Dated as of December 11, 1998
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CROSS REFERENCE SHEET*
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Provisions of Trust Indenture Act of 1939 and 1998 Senior Indenture to
be dated as of December 11, 1998 between SERVICE CORPORATION INTERNATIONAL and
THE BANK OF NEW YORK, Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
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310(a)(1), (2) and (5).............................................................. 6.9
310(a)(3) and (4) .................................................................. Inapplicable
310(b) ............................................................................. 6.8 and 6.10(a), (b) and (d)
310(c).............................................................................. Inapplicable
311(a) ............................................................................. 6.13(a) and (c)
311(b) ............................................................................. 6.13(b) and (c)
311(c) ............................................................................. Inapplicable
312(a) ............................................................................. 4.1 and 4.2(a)
312(b) ............................................................................. 4.2(a) and (b)(i) and (ii)
312(c).............................................................................. 4.2(c)
313(a) ............................................................................. 4.4(a)(i), (ii), (iii), (iv),
(v), (vi) and (vii)
313(a)(b)........................................................................... Inapplicable
313(b)(1) .......................................................................... Inapplicable
313(b)(2) .......................................................................... 4.4(b)
313(c) ............................................................................. 4.4(c)
313(d) ............................................................................. 4.4(d)
314(a) ............................................................................. 4.3
314(b) ............................................................................. Inapplicable
314(c)(1) and (2) .................................................................. 11.5
314(c)(3) .......................................................................... Inapplicable
314(d) ............................................................................. Inapplicable
314(e) ............................................................................. 11.5
314(f) ............................................................................. Inapplicable
315(a), (c) and (d) ................................................................ 6.1
315(b) ............................................................................. 5.8
315(e) ............................................................................. 5.9
316(a)(1) .......................................................................... 5.7
316(a)(2) .......................................................................... Not required
316(a) (last sentence) ............................................................. 7.4
316(b) ............................................................................. 5.4
316(c) ............................................................................. 7.6
317(a) ............................................................................. 5.2
317(b) ............................................................................. 3.5(a)
318(a) ............................................................................. 11.7
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* This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
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PARTIES...........................................................................................................1
RECITALS..........................................................................................................1
ARTICLE ONE
DEFINITIONS
SECTION 1.1.......................................................................................................1
Affiliate.......................................................................................2
Assets..........................................................................................2
Authenticating Agent............................................................................2
Bankruptcy Code.................................................................................2
Board of Directors..............................................................................2
Board Resolution................................................................................2
Business Day....................................................................................2
Capitalized Lease...............................................................................2
Commission......................................................................................2
Consolidated Assets.............................................................................2
Consolidated Subsidiary.........................................................................2
Corporate Trust Office..........................................................................2
Covenant........................................................................................3
Current Assets..................................................................................3
Current Liabilities.............................................................................3
Depositary......................................................................................3
Event of Default................................................................................3
Funded Debt.....................................................................................3
Global Security.................................................................................3
Holder..........................................................................................3
Holder of Securities............................................................................3
Securityholder..................................................................................3
Indebtedness....................................................................................3
Indenture.......................................................................................4
Interest........................................................................................4
Issuer..........................................................................................4
Issuer Order....................................................................................4
Non-Recourse Indebtedness.......................................................................4
Non-Recourse Subsidiary.........................................................................4
Officer's Certificate...........................................................................4
Opinion of Counsel..............................................................................4
Original issue date.............................................................................5
Original issue discount.........................................................................5
Original Issue Discount Security................................................................5
Outstanding.....................................................................................5
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Paying Agent....................................................................................5
Periodic Offering...............................................................................5
Person......................................................................................... 6
Place of Payment................................................................................6
Principal.......................................................................................6
Principal Amount................................................................................6
Record date.....................................................................................6
Registrar.......................................................................................6
Responsible Officer.............................................................................6
Security........................................................................................6
Securities......................................................................................6
Senior Debt.....................................................................................6
Subsidiary......................................................................................6
Trust Indenture Act of 1939.....................................................................7
Trustee.........................................................................................7
U.S. Government Obligations.....................................................................7
Vice president..................................................................................7
Yield to Maturity...............................................................................7
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally.................................................................................7
SECTION 2.2 Form of Trustee's Certificate of Authentication.................................................7
SECTION 2.3 Amount Unlimited; Issuable in Series............................................................8
SECTION 2.4 Authentication and Delivery of Securities......................................................10
SECTION 2.5 Execution of Securities........................................................................12
SECTION 2.6 Certificate of Authentication..................................................................13
SECTION 2.7 Denomination and Date of Securities; Payments of Interest......................................13
SECTION 2.8 Registration, Transfer and Exchange............................................................14
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities......................................15
SECTION 2.10 Cancellation of Securities; Disposition Thereof................................................16
SECTION 2.11 Temporary Securities...........................................................................16
SECTION 2.12 Computation of Interest........................................................................17
SECTION 2.13 CUSIP Numbers..................................................................................17
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Covenants......................................................................................17
SECTION 3.2 Payment of Principal and Interest..............................................................17
SECTION 3.3 Office for Notices and Payments, etc...........................................................17
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office.............................................17
SECTION 3.5 Provision as to Paying Agent...................................................................18
SECTION 3.6 Limitation on Liens............................................................................18
SECTION 3.7 Limitation on Sale and Leaseback Arrangements..................................................19
SECTION 3.8 Corporate Existence............................................................................20
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* This Table of Contents is not part of the Indenture.
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SECTION 3.9 Maintenance of Properties......................................................................20
SECTION 3.10 Payment of Taxes and Other Claims..............................................................20
SECTION 3.11 Calculation of Original Issue Discount.........................................................20
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders.............20
SECTION 4.2 Preservation and Disclosure of Securityholders Lists...........................................21
SECTION 4.3 Reports by the Issuer..........................................................................22
SECTION 4.4 Reports by the Trustee.........................................................................22
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 Events of Default..............................................................................24
Section 5.2 Payment of Securities on Default; Suit Therefor................................................26
Section 5.3 Application of Moneys Collected by Trustee.....................................................27
Section 5.4 Proceedings by Securityholders.................................................................28
Section 5.5 Proceedings by Trustee.........................................................................28
Section 5.6 Remedies Cumulative and Continuing.............................................................28
Section 5.7 Direction of Proceedings; Waiver of Defaults by Majority of Securityholders....................29
Section 5.8 Notice of Defaults.............................................................................29
Section 5.9 Undertaking to Pay Costs.......................................................................29
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default...................30
SECTION 6.2 Certain Rights of the Trustee..................................................................31
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof..........................................................................32
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc.......................................32
SECTION 6.5 Moneys Held by Trustee.........................................................................32
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim................................32
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate, etc.........................................33
SECTION 6.8 Qualification of Trustee; Conflicting Interests................................................33
SECTION 6.9 Persons Eligible for Appointment as Trustee....................................................38
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee......................................38
SECTION 6.11 Acceptance of Appointment by Successor Trustee.................................................39
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee.........................40
SECTION 6.13 Preferential Collection of Claims Against the Issuer...........................................40
SECTION 6.14 Appointment of Authenticating Agent............................................................43
SECTION 6.15 Trustee's Application for Instructions from the Company........................................44
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* This Table of Contents is not part of the Indenture.
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders....................................................44
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities.................................44
SECTION 7.3 Holders to be Treated as Owners................................................................45
SECTION 7.4 Securities Owned by issuer Deemed Not Outstanding..............................................45
SECTION 7.5 Right of Revocation of Action Taken............................................................45
SECTION 7.6 Record Date for Consents and Waivers...........................................................46
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.....................................46
SECTION 8.2 Supplemental Indentures With Consent of Securityholders........................................47
SECTION 8.3 Effect of Supplemental Indenture...............................................................48
SECTION 8.4 Documents to be Given to Trustee...............................................................48
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures...................................49
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc. on Certain Terms..................................................49
SECTION 9.2 Securities to be Secured in Certain Events.....................................................49
SECTION 9.3 Successor Corporation to be Substituted........................................................49
SECTION 9.4 Opinion of Counsel to be Given Trustee.........................................................50
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture........................................................50
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities............................52
SECTION 10.3 Repayment of Moneys Held by Paying Agent.......................................................52
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years......................52
SECTION 10.5 Indemnity for U.S. Government Obligations......................................................53
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability........................................................53
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities..............53
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture............................................53
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SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities...............................53
SECTION 11.5 Officer's Certificates and Opinions of Counsel; Statements to be Contained Therein.............54
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays................................................55
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939........................55
SECTION 11.8 Governing Law..................................................................................55
SECTION 11.9 Counterparts...................................................................................55
SECTION 11.10 Effect of Headings.............................................................................55
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article.......................................................................55
SECTION 12.2 Notice of Redemption; Partial Redemptions......................................................55
SECTION 12.3 Payment of Securities Called for Redemption....................................................56
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption..................57
SECTION 12.5 Mandatory of Optional Sinking Funds............................................................57
TESTIMONIUM......................................................................................................60
SIGNATURES.......................................................................................................60
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* This Table of Contents is not part of the Indenture.
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THIS 1998 SENIOR INDENTURE, dated as of December 11, 1998 between
SERVICE CORPORATION INTERNATIONAL, a Texas corporation (the "Issuer"), and THE
BANK OF NEW YORK, a New York banking corporation, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the 'Securities') up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time
of the Securities as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto, the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided or unless
the context otherwise clearly requires). All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939, including terms defined
therein by reference to the Securities Act of 1933, shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of this Indenture (except as herein otherwise expressly
provided or unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the date of
execution and delivery of this Indenture.
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. The expressions "date of this Indenture", "date
hereof', "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz.
December 11, 1998.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
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"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.
"Assets" means any property of the Issuer or a Subsidiary used in
businesses in which the Issuer and its Subsidiaries are engaged at the date of
execution and delivery of this Indenture.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code sec. 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect.
"Business Day" means, with respect to any Security, a day that (a) in
the Place of Payment (or in any of the Places of Payment, if more than one) in
which amounts are payable, as specified in the form of such Security, and (b) in
the city in which the Corporate Trust Office is located, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"Capitalized Lease" means any lease of property where the obligations
of the lessee thereunder are required to be classified and accounted for as a
capitalized lease on a balance sheet of such lessee under generally accepted
accounting principles.
"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 and delivery of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act of 1939, then the body performing such duties on such date.
"Consolidated Assets" means, as to any Person, total consolidated
assets (including assets subject to Capitalized Leases) of such Person and of
its Consolidated Subsidiaries, as determined in accordance with generally
accepted accounting principles.
"Consolidated Subsidiary" means, as to any Person, each Subsidiary of
such Person the accounts of which are or should be consolidated with the
accounts of such Person in reporting the consolidated financial statements of
such Person in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New
York 10286, Attention: Corporate Trust Administration.
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The term "covenant" shall have the meaning set forth in Section 3.1.
"Current Assets" of any Person includes all assets of such Person which
would in accordance with generally accepted accounting principles be classified
as current assets.
"Current Liabilities" of any Person includes all liabilities of such
Person which would in accordance with generally accepted accounting principles
be classified as current liabilities.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Global Securities of such series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Funded Debt" means Indebtedness for money borrowed which by its terms
matures at or is extendible or renewable at the option of the obligor to a date
more than 12 months after the date of the creation of such Indebtedness.
"Global Security" means a Security evidencing all or a part of a series
of Securities issued to the Depositary for such series in accordance with
Section 2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" means, with respect to any Person,
(a) (i) the principal of and interest and premium, if any,
on indebtedness for money borrowed of such Person evidenced by bonds,
notes, debentures or similar obligations, including any guaranty by
such Person of any indebtedness for money borrowed of any other Person,
whether any such indebtedness or guaranty is outstanding on the date of
this Indenture or is thereafter created, assumed or incurred, (ii) the
principal of and interest and premium, if any, on indebtedness for
money. borrowed, incurred, assumed or guaranteed by such Person in
connection with the acquisition by it or any of its subsidiaries of any
other businesses, properties or other assets and (iii) lease
obligations which such Person capitalizes in accordance with Statement
of Financial Accounting Standards No. 13 promulgated by the Financial
Accounting Standards Board or such other generally accepted accounting
principles as may be from time to time in effect;
(b) any other indebtedness of such Person, including any
indebtedness representing the balance deferred and unpaid of the
purchase price of any property or interest therein, including any such
balance that constitutes a trade account payable, and any guaranty,
endorsement or other contingent obligation of such Person in respect of
any indebtedness of another, which is outstanding on the date of this
Indenture or is thereafter created, assumed or incurred by such Person;
and
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(c) any amendments, modifications, refundings, renewals or
extensions of any indebtedness or obligation described as Indebtedness
in clause (a) or (b) above.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
The term "interest" means, when used with respect to non-interest
bearing Securities (including, without limitation, any Original Issue Discount
Security which by its terms bears interest only after maturity or upon default
in any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuer becomes obligated to acquire a
Security, whether by purchase or otherwise.
"Issuer" means (except as otherwise provided in Section 6.8) Service
corporation International, a Texas corporation, and, subject to Article Nine,
its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president, any vice president or the treasurer of the Issuer.
"Non-Recourse Indebtedness" means indebtedness where (i) the holders of
such indebtedness agree that they will look solely to the property securing such
indebtedness (and to a Non-Recourse Subsidiary) for payment on or in respect of
such indebtedness, and (ii) no default with respect to such indebtedness
(including any rights which the holders thereof may have to take enforcement
action against a Non-Recourse Subsidiary) would permit (after notice or passage
of time or both), according to the terms thereof, any holder of any Indebtedness
for money borrowed of the Issuer or any Subsidiary to declare a default on such
Indebtedness for money borrowed or cause the payment thereof to be accelerated
or payable prior to its stated maturity.
"Non-Recourse Subsidiary" means a Subsidiary or an Affiliate
established for the purpose of acquiring or investing in property securing
Non-Recourse Indebtedness and substantially all of the assets of which consist
of such property.
"Officer's Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5, if and to the extent required by the provisions of such Section
11.5. One of the officers signing any Officer's Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer of
the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the general
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer. Each such opinion shall include the statements
provided for in Section 11.5, if and to the extent required by the provisions of
such Section 11.5.
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The term "original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
The term "original issue discount" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face of
such Security).
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when used
with reference to Securities, shall, subject to the provisions of Section 7.4,
mean, as of any particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to
which the provisions of Article Ten hereof shall not be applicable), or
portions thereof for the payment or redemption of which moneys or U.S.
Government Obligations (as provided for in Section 10.1) in the
necessary amount shall have been deposited in trust with the Trustee or
with any Paying Agent (other than the Issuer) or shall have been set
aside, segregated and held in trust by the Issuer for the Holders of
such Securities (if the Issuer shall act as its own Paying Agent),
provided that, if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.9 (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 Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Section 5.1.
"Paying Agent" shall have the meaning set forth in Section 3.3.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
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maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
The term "principal" of a debt security, including any Security, means
the amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect to
such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Issuer, upon any purchase or exchange at the option of the Issuer
or the holder of such debt security and upon any acceleration of the maturity of
such debt security).
The term "principal amount" of a debt security, including any Security,
means the principal amount as set forth on the face of such debt security.
The term "record date" shall have the meaning set forth in Section 2.7.
"Registrar" shall have the meaning set forth in Section 3.3.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
officers, respectively, or to whom any corporate trust matter is referred
because of such Person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Security" or "Securities" (except as otherwise provided in Section
6.8) has the meaning stated in the first recital of this Indenture or, as the
case may be, Securities that have been authenticated and delivered pursuant to
this Indenture.
"Senior Debt" means Indebtedness which is not (i) Indebtedness of the
Issuer to any Subsidiary and (ii) Indebtedness of the Issuer which by its terms
is subordinate or junior in any respect to any other Indebtedness or other
obligation of the Issuer.
"Subsidiary" means any corporation of which the Issuer, or the Issuer
and one or more Subsidiaries, or any one or more Subsidiaries, directly or
indirectly own voting securities entitling any one or more of the Issuer and its
Subsidiaries to elect a majority of the directors of such corporation, either at
all times or so long as there is no default or contingency which permits the
holders of any other class or classes of securities to vote for the election of
one or more directors.
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"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) 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 Indenture
is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. Trustee" shall also mean or include each Person
who is then a trustee hereunder and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
The term "vice president", when used with respect to the Issuer 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".
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officer's Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated:
-----------------------------------
THE BANK OF NEW YORK, as Trustee
By
---------------------------------------
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
certificate of authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Dated:
-----------------------------------
THE BANK OF NEW YORK, as Trustee
By
---------------------------------------
as Authenticating Agent
By
---------------------------------------
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities
of each such series shall rank equally and pari passu as to the right of payment
of principal and interest, if any, with the Securities of each other series and
with all other Senior Debt of the Issuer. There shall be established in or
pursuant to one or more Board Resolutions (and to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officer's
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series:
(1) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
12.3);
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(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the date or dates on which any such interest
shall be payable and the date or dates on which a record shall be taken
for the determination of Holders to whom any such interest is payable
or the method by which such rate or rates or date or dates shall be
determined or both;
(5) the place or places where and the manner in which the
principal of and interest, if any, on Securities of the series shall be
payable and the office or agency for the Securities of the series
maintained by the Issuer pursuant to Section 3.3 (if other than as
provided in Section 3.3);
(6) the right, if any, of the Issuer to redeem, purchase or
repay Securities of the series, in whole or in part, at its option and
the period or periods within which, the price or prices (or the method
by which such price or prices shall be determined or both) at which,
the form or method of payment therefor, if other than in cash and any
terms and conditions upon which and the manner in which (if different
from the provisions of Article Twelve) Securities of the series may be
so redeemed, purchased or repaid, in whole or in part, pursuant to any
sinking fund or otherwise;
(7) any provisions relating to the issuance of Securities
of such series at an original issue discount (including, without
limitation, the issue price thereof, the rate or rates at which such
original issue discount shall accrue, if any, and the date or dates
from or to which or period or periods during which such original issue
discount shall accrue at such rate or rates);
(8) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series, in whole or in part,
pursuant to any mandatory redemption, sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices (or the method by which such
price or prices shall be determined or both) at which, the form or
method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the
provisions of Article Twelve) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon acceleration of the maturity thereof,
(11) whether Securities of the series will be issuable as
Global Securities;
(12) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(13) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
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(14) any deleted, modified or additional events of default
or remedies or any deleted, modified or additional covenants with
respect to the Securities of such series;
(15) whether the provisions of Section 10.1(C) will be
applicable to Securities of such series;
(16) if the amounts of payments of principal and interest on
the Securities of such series are to be determined with reference to an
index, the manner in which such amounts shall be determined;
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(18) CUSIP Numbers.
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or pursuant
to the Board Resolution or Officer's Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
Any such Board Resolution or Officer's Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of this Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers Certificate were
set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. In authenticating the Securities
of such series and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive (in the case of subparagraphs (2), (3) and (4) below only at or before
the time of the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be fully protected
in conclusively relying, in the absence of bad faith on the part of the Trustee,
upon, unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities of such series
are not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
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established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to
time by an Issuer Order, (c) the maturity date or dates, original issue
date or dates, interest rate or rates, if any, and any other terms of
Securities of such series shall be determined by an Issuer Order or
pursuant to such procedures, (d) if provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant to
electronic instructions from the Issuer or its duly authorized agent or
agents and (e) after the original issuance of the first Security of
such series to be issued, any separate request by the Issuer that the
Trustee authenticate Securities of such series for original issuance
will be deemed to be a certification by the Issuer that it is in
compliance with all conditions precedent provided for in this Indenture
relating to the authentication and delivery of such Securities;
(2) the Board Resolution, Officer's Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the form or forms and terms of the Securities of such
series were established;
(3) an Officer's Certificate setting forth the form or
forms and terms of the Securities stating that the form or forms and
terms of the Securities have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture and covering such other matters
as the Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter from legal counsel addressed to the Trustee
permitting it to rely on an Opinion of Counsel, substantially to the
effect that:
(a) the form or forms of the Securities of such
series have been duly authorized and established in conformity
with the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities of such series have been duly
authorized and established in conformity with the provisions
of this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities of such series
have been established pursuant to a Board Resolution, an
Officer's Certificate or a supplemental indenture in
accordance with this Indenture, and when such other terms as
are to be established pursuant to procedures set forth in an
Issuer Order shall have been established, all such terms will
have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
(c) when the Securities of such series have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, they will have
been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled
to the benefits of this Indenture, and
(d) the execution and delivery by the Issuer of,
and the performance by the Issuer of its obligations under,
the Securities of such series will not contravene any
provision of applicable law or the articles of incorporation
or by-laws of the Issuer or any agreement or other instrument
binding upon the Issuer or any of its Subsidiaries that is
material to the Issuer and its Subsidiaries, considered as one
enterprise, or, to such counsel's
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knowledge after the inquiry indicated therein, any judgment,
order or decree of any governmental agency or any court having
jurisdiction over the Issuer or any Subsidiary, and no consent
approval or authorization of any governmental body or agency
is required for the performance by the Issuer of its
obligations under the Securities, except such as are specified
and have been obtained and such as may be required by the
securities or blue sky laws of the various states in
connection with the offer and sale of the Securities.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Texas and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of any series under this Section 2.4 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by the
Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under the Securities, this Indenture
or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the 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.'
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Issuer by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer, under its
corporate seal which may, but need not, be attested by its secretary or one of
its assistant secretaries. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise
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reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories or its Authenticating Agent, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee, or its Authenticating Agent, upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable in registered form in
denominations established as contemplated by Section 2.3 or, with respect to the
Securities of any series, if not so established, in denominations of $1,000 and
any integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine with the
approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a) at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether
or not such record date is a Business Day.
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SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
keep at the office of each Registrar for each series of Securities a register or
registers in which, subject to such reasonable regulations as it may prescribe,
it will provide for the registration of Securities of each series and the
registration of transfer of Securities of such series. Each such register shall
be in written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection and available for copying by
the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at the office of any Registrar, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series, maturity date,
interest rate, if any, and original issue date in authorized denominations for a
like aggregate principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the office of the Registrar.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Security of
a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.3 that
such Securities be represented by one or more
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Global Securities shall no longer be effective and the Issuer shall execute, and
the Trustee, upon receipt of an Issuer Order for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive registered form, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Global Security or Securities representing such Securities representing such
Securities in exchange for such Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Issuer shall execute, and the Trustee, upon receipt of an Officer's
Certificate for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, Securities of such series in definitive
registered form, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities, in exchange for such Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary, a new
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to clause (i)
above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities in
definitive registered form issued in exchange for a Global Security pursuant to
this Section 2.8 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 an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver at its office such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid and legally binding obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any officer of the Issuer, the Trustee
shall authenticate and deliver a new Security of the same series, maturity date,
interest rate, if any, and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity as
may be required by the Trustee to indemnify
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and defend and to save each of the Trustee and the Issuer harmless and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof and in
the case of mutilation or defacement, shall surrender the Security to the
Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen the Issuer may instead of issuing a substitute Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated or defaced Security), if the applicant for such payment shall furnish
to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to hold each of them harmless,
and, in every case of destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to the Trustee's satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section 2.9 by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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 (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, purchase, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee or its agent
shall dispose of cancelled Securities held by it, or hold such Securities in
accordance with its standard retention policy, and deliver a certificate of
disposition or retention to the Issuer. If the Issuer or its agent shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
shall
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execute and shall furnish definitive Securities of such series and thereupon
temporary Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.3 and the Trustee shall authenticate and deliver
in exchange for such temporary Securities of such series an equal aggregate
principal amount of definitive Securities of the same series having authorized
denominations. Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 Computation of Interest. Except as otherwise specified
as contemplated by Section 2.1 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.13 CUSIP Numbers. The Issuer 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 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 Issuer will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Covenants. The term "covenants", whenever used herein
with respect to the covenants of the Issuer applicable to Securities of any
series, includes without limitation the covenants set forth in this Article
Three, unless it is either inapplicable to a particular series or it is
specifically deleted or modified in or pursuant to the Board Resolution or
supplemental indenture establishing such series of Securities or in the form of
Security for such series.
SECTION 3.2 Payment of Principal and Interest. The Issuer covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of and interest, if any, on each of the Securities at the place, at
the respective times and in the manner provided in the Securities.
SECTION 3.3 Office for Notices and Payments, etc. So long as any of
the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment
("Paying Agent"), an office or agency where the Securities may be presented for
registration of transfer and for exchange ("Registrar") as in this Indenture
provided, and an office or agency where notices and demands to or upon the
Issuer in respect of the Securities or of this Indenture may be served. In case
the Issuer shall at any time fail to maintain any such office or agency, or
shall fail to give notice to the Trustee of any change in the location thereof,
presentation may be made and notice and demand may be served in respect of the
Securities or of this Indenture at the Corporate Trust Office. The Issuer hereby
initially designates the Corporate Trust Office for each such purpose and
appoints the Trustee as Registrar, Paying Agent and as the agent upon whom
notices and demands may be served with respect to the Securities.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
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SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall
appoint a Paying Agent other than the Trustee, it will cause such Paying Agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of or interest, if any, on the Securities
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities) in trust for the benefit of the Holders of
the Securities or the Trustee; and
(2) that it will give the Trustee notice of any failure by
the Issuer (or by any other obligor on the Securities) to make any
payment of the principal of or interest, if any, on the Securities when
the same shall be due and payable; and
(3) that it will, at any time during the continuance of any
such failure, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
(b) If the Issuer shall act as its own Paying Agent, it will, on
or before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal or interest, if
any, so becoming due and will notify the Trustee of any failure to take such
action and of any failure by the Issuer (or by any other obligor under the
Securities) to make any payment of the principal of or interest, if any, on the
Securities when the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding,
the Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any Paying Agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding,
any agreement of the Trustee or any Paying Agent to hold sums in trust as
provided in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more Paying Agents, it
will, on or before each due date of the principal of or interest, if any, on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal or interest, if any; and (unless such
Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or failure so to act.
SECTION 3.6 Limitation on Liens. The Issuer will not mortgage,
pledge, encumber or subject to any lien or security interest, and no Subsidiary
will mortgage, pledge, encumber or subject to any lien or security interest to
secure any obligation of the Issuer or any obligation of any Subsidiary (other
than obligations owing to the Issuer or a wholly-owned Subsidiary) any assets,
whether owned on February 1, 1993, or thereafter acquired, without effectively
providing that the Securities (for this purpose, if the Securities of that
series are Original Issue Discount Securities, the principal amount of the
Securities of that series shall be computed and adjusted as may be specified in
the terms of that series) shall thereby be secured equally and ratably (computed
and adjusted as aforesaid) with (or prior to) any other obligation so secured,
unless, after giving effect thereto, the aggregate amount of all such secured
debt of the Issuer and its Subsidiaries (excluding secured Indebtedness existing
as of February 1, 1993 and any extensions, renewals or refundings thereof that
do not increase the principal amount of Indebtedness so extended, renewed or
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refunded and excluding secured Indebtedness incurred pursuant to subparagraphs
(a), (b), (c) and (d) below), would not exceed 10% of Consolidated Assets of the
Issuer and its Subsidiaries; provided however, that nothing in this Section 3.6
shall prevent the Issuer or any Subsidiary:
(a) from acquiring and retaining property subject to
mortgages, pledges, encumbrances, liens or security interests existing thereon
at the date of acquisition thereof, or from creating mortgages, pledges,
encumbrances or liens upon property acquired by it within one year of the date
of acquisition thereof to secure debt which does not exceed the aggregate
acquisition price (including without duplication any debt assumed in connection
with such acquisition or otherwise existing with respect to the acquired
property) of all property so encumbered;
(b) from mortgaging, pledging, encumbering or subjecting to
any lien or security interest Current Assets to secure Current Liabilities;
(c) from extending, renewing or refunding any Indebtedness
secured by a mortgage, pledge, encumbrance, lien or security interest on the
same property theretofore subject thereto, provided that the principal amount of
such Indebtedness so extended, renewed or refunded shall not be increased; or
(d) from securing the payment of workmen's compensation or
insurance premiums or from making good faith pledges or deposits in connection
with bids, tenders, contracts (other than contracts for the payment of money) or
leases, deposits to secure public or statutory obligations, deposits to secure
surety or appeal bonds, pledges or deposits in connection with contracts made
with or at the request of the United States Government or any agency thereof, or
pledges or deposits for similar purposes in the ordinary course of business.
SECTION 3.7 Limitation on Sale and Leaseback Arrangements. Neither
the Issuer nor any Subsidiary will enter into any transaction with any bank,
insurance company or other lender or investor, or to which any such lender or
investor is a party, providing for the leasing to the Issuer or a Subsidiary of
any real property (except a lease for a temporary period not to exceed three
years by the end of which it is intended that the use of such real property by
the lessee will be discontinued) which has been or is to be sold or transferred
by the Issuer or such Subsidiary to such lender or investor or to any person to
whom funds have been or are to be advanced by such lender or investor on the
security of such real property unless, either:
(1) such transaction is the substantial equivalent of a
mortgage, pledge, encumbrance, lien or security interest which the
Issuer or any Subsidiary would have been permitted to create under
Section 3.6 without equally and ratably securing the Securities, or
(2) the Issuer within 120 days after such transaction
applied (and in any such case the Issuer covenants that it will so
apply) an amount equal to the greater of (i) the net proceeds of the
sale of the real property leased pursuant to such transaction or (ii)
the fair value of the real property so leased at the time of entering
into such transaction (as determined by the Board of Directors), to the
retirement of Funded Debt of the Issuer; provided that the amount to be
applied to the retirement of Funded Debt of the Issuer shall be reduced
by:
(a) the principal amount of any Securities (for
this purpose if the Securities of that series are
Original Issue Discount Securities, the principal
amount of the Outstanding Securities of that series
shall be computed and adjusted as may be
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specified in the terms of that series) delivered within
120 days after such sale to the Trustee for retirement
and cancellation, together with an Officer's
Certificate stating that the Issuer has elected to have
credited against such retirement of Funded Debt the
principal amount of Securities so delivered and that
such Securities do not include any Securities
theretofore redeemed or called for redemption, and
(b) the principal amount of Funded Debt, other than
Securities, voluntarily retired by the Issuer within
120 days after such sale; provided that no retirement
referred to in this clause (2) may be effected by
payment at maturity or pursuant to any mandatory
sinking fund payment or any mandatory prepayment
provision.
SECTION 3.8 Corporate Existence. Subject to, and except as
otherwise provided in, Article Nine, the Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, and franchise to be a corporation, and will remain qualified as a
foreign corporation in good standing in each jurisdiction wherein the ownership
of its assets or the conduct of its business requires it to be so qualified,
except where the failure to so qualify would not have a material adverse effect
on the Issuer and its Subsidiaries taken as a whole.
SECTION 3.9 Maintenance of Properties. The Issuer will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Issuer may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
Issuer from discontinuing the operation or maintenance of any of such properties
if such discontinuance is, in the judgment of the Issuer, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 3.10 Payment of Taxes and Other Claims. The Issuer will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Issuer or any Subsidiary, provided, however, that the Issuer
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 3.11 Calculation of Original Issue Discount. The Issuer
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Securities as of the end of
such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the Securities
covenant and agree that they will furnish or cause to be
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furnished to the Trustee a list in such form as the Trustee may reasonably
require containing all the information in the possession or control of the
Company or any of its Paying Agents other than the Trustee regarding the names
and addresses of the Holders of the Securities of each series as of a date not
more than 15 days prior to the time such list is furnished:
(a) semiannually and not more than 15 days after each
January I and July 1; and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request;
provided that if and so long as the Trustee shall be the Registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 4.1, and (ii) received by it in the capacity of Registrar
or Paying Agent for such series, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities, and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within five Business Days
after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of 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 the provisions of
subsection (a) of this Section 4.2, 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 to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2, 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 five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
(Securities of such series or of all Securities, 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
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Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met, and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Securityholders 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) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section 4.2, 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 such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer 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 Issuer 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 Issuer is not required to file information, documents or
reports pursuant to either of such Sections, then to 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 debt security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) to 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
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his knowledge of the Issuer's compliance with
all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any period
of grace or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee (a) Within 60 days after
November 15 of each year commencing with the year 1999, the Trustee shall
transmit by mail to the Holders of Securities, as provided in subsection (c) of
this Section 4.4, a brief report dated as of such November 15 with respect to
any of the following events which may have occurred within the last 12 months
(but if no such event has occurred within such period, no report need be
transmitted):
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(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
(ii) the creation of, or any material change to, a
relationship specified in paragraph (i) through (x) of Section 6.8(c);
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities 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 all Securities Outstanding on the
date of such report;
(iv) the amount, interest rate, if any, and maturity date of
all other indebtedness owing by the Issuer (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 any indebtedness based upon a
creditor relationship arising in any manner described in Section
6.13(b)(2), (3), (4) or (6);
(v) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date of
such report;
(vi) any additional issue of Securities which the Trustee
has not previously reported, and
(vii) any action taken by the Trustee in the performance of
its duties under this Indenture 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 it in accordance with the provisions of Section 5.8.
(b) The Trustee shall transmit to the Securityholders of each series,
as provided in subsection (c) of this Section 4.4, 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 the provisions
of subsection (a) of this Section 4.4 (or if no such report has yet been so
transmitted, since the date of this Indenture) for the reimbursement of which it
claims or may claim a lien or charge prior to that of the Securities of such
series on property or funds held or collected by it as Trustee and which it has
not previously reported pursuant to this subsection (b), 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
all Securities Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(i) to all Holders of Securities, as the names and
addresses of such Holders appear upon the registry books of the Issuer;
and
(ii) to all other Persons to whom such reports are required
to be transmitted pursuant to Section 313(c) of the Trust Indenture Act
of 1939.
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(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of any applicable
series are listed and also with the Commission. The Issuer agrees to notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange or became
delisted therefrom.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein with respect to Securities of any series, means any one or more of the
following events, unless it is either inapplicable to a particular series or it
is specifically deleted or modified in or pursuant to the Board Resolution or
supplemental indenture establishing such series of Securities or in the form of
Security for such series:
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period of
30 days; or
(b) default in the payment of the principal of any of the
Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) default in the payment or satisfaction of any sinking
fund or other purchase obligation with respect to Securities of such
series, as and when such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer in the Securities of such series or in this Indenture continued
for a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Issuer by the Trustee by registered or certified mail, or to the
Issuer and the Trustee by the Holders of at least 25 percent in
aggregate principal amount of the Securities of such series then
Outstanding; or
(e) without the consent of the Issuer a court having
jurisdiction shall enter an order for relief with respect to the Issuer
under the Bankruptcy Code or without the consent of the Issuer a court
having jurisdiction shall enter a judgement order or decree adjudging
the Issuer a bankrupt or insolvent, or enter an order for relief for
reorganization, arrangement, adjustment or composition of or in respect
of the Issuer under the Bankruptcy Code or applicable state insolvency
law and the continuance of any such judgment, order or decree is
unstayed and in effect for a period of 60 consecutive days; or
(f) the Issuer shall institute proceedings for entry of an
order for relief with respect to the Issuer under the Bankruptcy Code
or for an adjudication of insolvency, or shall consent to the
institution of bankruptcy or insolvency proceedings against it, or
shall file a petition seeking, or seek or consent to reorganization,
arrangement, composition or relief under the Bankruptcy Code or any
applicable state law, or shall consent to filing of such petition or to
the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer or of
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substantially all of its property, or the Issuer shall make a general
assignment for the benefit of creditors as recognized under the
Bankruptcy Code; or
(g) default under any bond, debenture, note or other
evidence of Indebtedness for money borrowed by the Issuer or any
Subsidiary or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Issuer or any Subsidiary (other
than Non-Recourse Indebtedness), whether such Indebtedness exists on
the date hereof or shall hereafter be created, which default shall have
resulted in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, or any default in payment of such Indebtedness (after the
expiration of any applicable grace periods and the presentation of any
debt instruments, if required), if the aggregate amount of all such
Indebtedness which has been so accelerated and with respect to which
there has been such a default in payment shall exceed $50,000,000,
without each such default and acceleration having been rescinded or
annulled within a period of 30 days after there shall have been given
to the Issuer by the Trustee by registered mail, or to the Issuer and
the Trustee by the Holders of at least 25 percent in aggregate
principal amount of the Securities of such series then Outstanding, a
written notice specifying each such default and requiring the Issuer to
cause each such default and acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the
Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25
percent in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the unpaid 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 such series) of all the
Securities of such series and the interest, if any, accrued 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. This
provision, however, is subject to the condition that, if at any time after the
unpaid principal amount (or such specified amount) of the Securities of such
series shall have been so declared due and payable and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any, upon all of
the Securities of such series and the principal of any and all Securities of
such series which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, if any, to the extent that payment
of such interest is enforceable under applicable law and on such principal at
the rate borne by the Securities of such series to the date of such payment or
deposit) and the reasonable compensation, disbursements, expenses and advances
of the Trustee, and any and all defaults under this Indenture, other than the
nonpayment of such portion of the principal amount of and accrued interest, if
any, on Securities of such series which shall have become due by acceleration,
shall have been cured or shall have been waived in accordance with Section 5.7
or provision deemed by the Trustee to be adequate shall have been made therefor
then and in every such case the Holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding, by written notice to
the Issuer and to the Trustee, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon. If
any Event of Default with respect to the Issuer specified in Section 5.1(e) or
5.1(f)
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occurs, the unpaid principal amount (or, if the Securities of any series then
Outstanding are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of each such series) and
accrued interest on all Securities of each series then Outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act by the Trustee or any Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1(a),
(b) or (c), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a Paying Agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a), if default shall be made in the payment of any
installment of interest upon any of the Securities of any series then
Outstanding as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) if default shall be made in
the payment of the principal of any of the Securities of such series as and when
the same shall have become due and payable, whether at maturity of the
Securities of such series or upon redemption or by declaration or otherwise -
then, upon demand of the Trustee, the Issuer will pay to the Trustee, for the
benefit of the Holders of the Securities, the whole amount that then shall have
become due and payable on all such Securities of such series for principal or
interest, if any, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest, if any, at the rate
borne by the Securities of such series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder other
than through its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sum so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the
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whole amount of principal and interest, if any, owing and unpaid in respect of
the Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other obligor
on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses, including
counsel fees incurred by it up to the date of such distribution. To the extent
that such payment of reasonable compensation, expenses and counsel fees out of
the estate in any such proceedings shall be denied for any reason, payment of
the same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, moneys, securities and other property which the
Holders of the Securities of such series may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee pursuant to Section 6.6 except as a
result of its negligence or bad faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if
any, on the Securities of such series, in the order of the maturity of
the installments of such interest, if any, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue
installments of interest, if any, at the rate borne by the Securities
of such series, such payment to be made ratably to the Persons entitled
thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Securities of such
series for principal and interest, if any, with interest on the overdue
principal and (to the extent that such interest has been collected by
the Trustee) upon overdue installments of interest, if any, at the rate
borne by the Securities of such series; and in case such moneys shall
be insufficient to pay in full the whole amounts so due and unpaid upon
the Securities of such series, then to the payment of such principal
and interest, if any, without preference or priority of principal over
interest or of interest over principal, or of any installment of
interest over any other installment
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of interest, or of any Security over any other Security, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer, its
successors or assigns.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities
to which it relates, or which in any manner shall have been kept alive
after maturity by an extension (otherwise than pursuant to an extension
made pursuant to a plan proposed by the Issuer to the Holders of all
Securities of any series then Outstanding), purchase, funding or
otherwise by or on behalf or with the consent or approval of the Issuer
shall be entitled, in case of a default hereunder, to any benefit of
this Indenture, except after prior payment in full of the principal of
all Securities of any series then Outstanding and of all claims for
interest not so transferred, pledged, kept alive, extended, purchased
or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any
Securities of any series then Outstanding shall have any right by virtue of or
by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or the Securities or for the appointment of a receiver or trustee or similar
official, or for any other remedy hereunder or thereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless the Holders of not
less than 25 percent in aggregate principal amount of the Securities of such
series then Outstanding shall have made written request to the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding, it being understood and intended, and being
expressly covenanted by the Holder of every Security of such series with every
other taker and Holder and the Trustee, 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 or of the Securities to
affect, disturb or prejudice the rights of any other Holder of such Securities
of such series, or to obtain or seek to obtain priority over or preference as to
any other such Holder, or to enforce any right under this Indenture or the
Securities, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of and
interest, if any, on such Security, on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates shall not be impaired or affected
without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and
remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed
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cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Securityholders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Securityholder to exercise any right or power accruing upon any
default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.4, every power
and remedy given by this Article Five or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders. The Holders of at least a majority in aggregate
principal amount of the Securities of any series then Outstanding 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 Securities of such series; provided, however, that
(subject to the provisions of Section 6.1) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine upon advice
of counsel that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors, its executive
committee, or a trust committee of directors or Responsible Officers or both
shall determine that the action or proceeding so directed would involve the
Trustee in personal liability. The Holders of 66 2/3% in aggregate principal
amount of the Securities of any series then Outstanding may on behalf of the
Holders of all of the Securities of such series waive any past default or Event
of Default hereunder and its consequences except a default in the payment of
interest, if any, on, or the principal of, the Securities of such series. Upon
any such waiver the Issuer, the Trustee and the Holders of the Securities of
such series shall be restored to their former positions and rights hereunder,
respectively, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default hereunder shall have been waived as permitted by this
Section 5.7, said default or Event of Default shall for all purposes of the
Securities and this Indenture be deemed to have been cured and to be not
continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days
after the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 5.1, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (d) or (g) but in the case
of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
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
or Responsible Officers or both of the Trustee in good faith determine that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay 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
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undertaking to pay the cost of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.9 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 ten percent in principal
amount of the Securities of any series then Outstanding, or to any suit
instituted by any Securityholders for the enforcement of the payment of the
principal of or interest, if any, on any Security against the Issuer on or after
the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default with respect to such series which may
have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
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 (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
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(c) 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 pursuant to Section 5.7 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
Officer's Certificate or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture,
note, coupon, security or other paper or document (whether in its
original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate or Issuer Order (unless other evidence in respect thereof
be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer,
(c) the Trustee may consult with counsel of its own
selection, reasonably satisfactory to the Issuer, and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant to
the provisions of this Indenture (including, without limitation,
pursuant to Section 5.1), unless such Securityholders shall have
offered to the Trustee security or indemnity, reasonably satisfactory
to it, against the costs, expenses and liabilities (including
reasonable attorneys' fees and expenses) which might be incurred
therein or thereby,
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal,
bond, debenture, note, coupon, security, or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to
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be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
require indemnity reasonably satisfactory to it against such expenses
or liabilities as a condition to proceeding, the reasonable expenses of
every such investigation shall be paid by the Issuer or, if paid by the
Trustee or any predecessor Trustee, shall be repaid by the Issuer upon
demand; 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 not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, the Securities or of any prospectus
used to sell the Securities. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to
time as agreed upon in writing, and the Trustee shall be entitled to,
compensation (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
willful misconduct. The Issuer also covenants to fully indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any and all loss,
liability, claim, damage or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds held or collected
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by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities, and the Securities are hereby subordinated to
such senior claim. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1 or in connection
with Article Five hereof, the expenses (including the reasonable fees and
expenses of its counsel) and the compensation for the services in connection
therewith are intended to constitute expenses of administration under any
bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officer's Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or willful misconduct on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered or omitted
by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. (a) If
the Trustee has or shall acquire any conflicting interest (as defined in
subsection (c)), then within 90 days after ascertaining that it has such
conflicting interest, and if the default (as defined in subsection (c)) to which
such conflicting interest relates has not been cured or duly waived or otherwise
eliminated before the end of such 90-day period, the Trustee shall either
eliminate such conflicting interest or, except as otherwise provided below,
resign, and the Issuer shall take prompt steps to have a successor appointed in
the manner provided in Section 6.10.
(b) If the Trustee shall fail to comply with the provisions of
subsection (a), the Trustee shall, within 10 days after the expiration of such
90-day period, transmit notice of such failure to the Securityholders in the
manner and to the extent provided in Section 4.4 and, subject to the provisions
of Section 5.9, unless the Trustees duty to resign is stayed as provided below,
any Securityholder who has been a bona fide holder of Securities for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee, and the
appointment of a successor, if the Trustee fails, after written request thereof
by such Securityholder to comply with the provisions of subsection (a).
Except in the case of a default in the payment of the principal of or
interest on any Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 6.8 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under this Indenture may be cured or waived
during a reasonable period and under the procedures described in such
application, and
(ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Securities.
The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise. Any
resignation of the Trustee shall become effective only upon the appointment of a
successor trustee in accordance with the provisions of Section 6.10 and such
successor's acceptance of such an appointment.
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(c) For the purposes of this Section 6.8, the Trustee shall be
deemed to have a conflicting interest with respect to Securities of any series
if the Securities of such series are in default (as determined in accordance
with the provisions of Section 5.1, but exclusive of any period of grace or
requirement of notice) and
(i) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any other series or is a
trustee under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of
the Issuer are outstanding, unless such other indenture is a collateral
trust indenture under which the only collateral consists of Securities
issued under this Indenture; provided that there shall be excluded from
the operation of this paragraph this Indenture with respect to the
Securities of any other series and there shall also be so excluded any
other indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Issuer are outstanding if (x) this Indenture is and, if applicable,
this Indenture and any series issued pursuant to this Indenture and
such other indenture or indentures are wholly unsecured and rank
equally and such other indenture or indentures are hereafter qualified
under the Trust Indenture Act of 1939, unless the Commission shall have
found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act of 1939 that differences exist
between the provisions of this Indenture with respect to Securities of
such series and one or more other series, or the provisions of this
Indenture and the provisions of such other indenture or indentures
which are so likely to involve a material conflict of interest as to
make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this
Indenture with respect to Securities of such series and such other
series, or under this Indenture or such other indenture or indentures,
or (y) the Issuer shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to
Securities of such series and such other series, or under this
Indenture and such other indenture or indentures is not so likely to
involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to
Securities of such series and such other series, or under this
Indenture and such other indentures;
(ii) the Trustee or any of its directors or executive
officers is an underwriter for the Issuer;
(iii) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Issuer;
(iv) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Issuer, or of an underwriter (other than the
Trustee itself) for the Issuer who is currently engaged in the business
of underwriting, except that (x) one individual may be a director or an
executive officer, or both, of the Trustee and a director or an
executive officer, or both, of the Issuer, but may not be at the same
time an executive officer of both the Trustee and the Issuer, (y) if
and so long as the number of directors of the Trustee in office is more
than nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Issuer, and (z)
the Trustee may be designated by the Issuer or, by any underwriter for
the Issuer to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent, or depositary, or
in any other similar capacity, or, subject to the provisions of
subsection (c)(i) of this Section, to act as trustee, whether under an
indenture or otherwise;
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(v) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Issuer or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons;
or 10% or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Issuer or by any director,
partner, or executive officer thereof or is beneficially owned,
collectively, by any two or more such persons;
(vi) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, (x) 5% or
more of the voting securities or 10% or more of any other class of
security of the Issuer, not including the Securities issued under this
Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (y) 10% or more of any class of
security of an underwriter for the Issuer;
(vii) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Issuer;
(viii) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Issuer;
(ix) the Trustee owns on the date of default (as determined
in accordance with the provisions of Section 5.1, but exclusive of any
period of grace or requirement of notice) or on any anniversary of such
default while such default remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an
aggregate of 25% or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraphs (vi), (vii) or (viii) of this subsection. As to any such
securities of which the Trustee acquired ownership through becoming
executor, administrator, or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such acquisition, to
the extent that such securities included in such estate do not exceed
25% of such voting securities or 25% of any such class of security.
Promptly after the dates of any such default and annually in each
succeeding year that the Securities remain in default, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Issuer fails to
make payment in full of principal of or interest on, any of the
Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such Securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such Securities so held by the
Trustee, with sole or joint control over such Securities vested in it,
shall, but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes of
paragraphs (vi), (vii) and (viii) of this subsection; or
(x) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 6.13(b), the Trustee shall be or
shall become a creditor of the Issuer.
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For purposes of subsection (c)(i), the term "series of securities" or
"series" means a series, class or group of securities issuable under an
indenture pursuant to whose terms holders of one such series may vote to direct
the Trustee, or otherwise take action pursuant to a vote of such holders,
separately from holders of another such series; provided, that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in subsections (c)(v) to (ix),
inclusive, of this Section 6.8 shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of subsections (c)(iii) or (vii) of this Section 6.8.
For the purposes of subsections (c)(vi), (vii), (viii) and (ix) of this
Section 6.8, only,
(i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities,
but shall not include any note or other evidence of indebtedness issued
to evidence an obligation to repay moneys lent to a person by one or
more banks, trust companies, or banking firms, or any certificate of
interest or participation in any such note or evidence of indebtedness;
(ii) an obligation shall be deemed to be in default when a
default in payment of principal shall have continued for 30 days or
more and shall not have been cured; and
(iii) the Trustee shall not be deemed to be the owner or
holder of (x) any security which it holds as collateral security, as
trustee or otherwise, for an obligation which is not in default as
defined in clause (ii) above, or (y) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (z) any security which it holds as agent for collection,
or as custodian, escrow agent, or depositary, or in any similar
representative capacity.
Except as provided above, the word "security" or "securities" as used
in this Section 6.8 shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment contract, voting
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security, or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For purposes of this Section 6.8:
(i) the term "underwriter" when used with reference to the
Issuer shall mean every person who, within a one year period prior to
the time as of which the determination is made, was an underwriter of
any security of the Issuer outstanding at the time of the
determination;
(ii) the term "director" shall mean any director of a
corporation or any individual performing similar functions with respect
to any organization whether incorporated or unincorporated;
(iii) the term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a
trust, an unincorporated organization, or a government or
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political subdivision thereof, as used in this paragraph, the term
"trust" shall include only a trust where the interest or interests of
the beneficiary or beneficiaries are evidenced by a security;
(iv) the term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement whereby
a trustee or trustees or agent or agents for the owner or holder of
such security are presently entitled to vote in the direction or
management of the affairs of a person;
(v) The term "Issuer" shall mean any obligor upon the
Securities; and
(vi) the term "executive officer" shall mean the president,
every vice president, every trust officer, the cashier, the secretary,
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section 6.8 shall be calculated in accordance with the
following provisions:
(i) a specified percentage of the voting securities of the
Trustee, the Issuer or any other person referred to in this Section 6.8
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person;
(ii) a specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding;
(iii) the term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security;
(iv) the term "outstanding" means issued and not held by or
for the account of the issuer, the following securities shall not be
deemed outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(D) securities held in escrow if placed in escrow
by the issuer thereof;
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provided, that any voting securities of an issuer shall be deemed outstanding if
any person other than the issuer is entitled to exercise the voting rights
thereof; and
(v) a security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that,
in the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient
to constitute them securities of different classes, whether or not they
are issued under a single indenture.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any state or the District of Columbia having a combined capital
and surplus of at least $50,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
federal, state or District of Columbia authority, or a corporation or other
Person permitted to act as trustee by the Commission. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 6.9, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. No obligor upon the
Securities or any Affiliate of such obligor shall serve as Trustee upon the
Securities. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of securities by
giving written notice of resignation to the Issuer and by mailing notice of such
resignation to the Holders of then outstanding Securities of each series
affected at their addresses as they shall appear on the registry books. Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.9, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
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(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign after
written request therefor by the Issuer or by any such Securityholder;
or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.9, any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months may on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder, but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, 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 retiring
shall continue to
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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 under separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Issuer fails to give such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any successor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer.
(a) Subject to the provisions of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Issuer
within three months prior to a default, as defined in subsection (c) of this
Section 6.13, 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 this
Section 6.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three month period
and valid as against the Issuer and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section
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6.13, 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 Issuer upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
month period, or an amount equal to the proceeds of any such property,
if disposed of, subject, however, to the rights, if any, of the Issuer
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 Issuer) who is
liable thereon, (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 Issuer in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Bankruptcy Code or applicable state law;
(B) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was so held
prior to the beginning of such three month period;
(C) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default as defined in subsection (c) of this Section would occur
within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Securityholders and the holders of other indenture
securities in such manner that the Trustee, such 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 Issuer in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Bankruptcy Code 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 Issuer of the funds and property in such special
account and before crediting to the respective claims of the Trustee, such
Securityholders and the holders of other indenture securities dividends on
claims filed against the Issuer in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Bankruptcy Code or
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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 in proceedings for reorganization pursuant to the
Bankruptcy Code or applicable state law, whether such distribution is made in
cash, securities or other property, but shall not include any such distribution
with respect to the secured portion, if any, of such claim. The court in which
such bankruptcy, receivership or proceeding for reorganization is pending shall
have jurisdiction (i) to apportion between the Trustee, such 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 the
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, such 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 who has resigned or been removed after the beginning of
such three month period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three month period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section
6.13 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 advance 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)(2) of this Section 6.13;
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(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 Issuer; 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)(3) of this Section 6.13.
(c) As used in this Section 6.13:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the
Securities when and as such principal or interest becomes due and
payable;
(2) the term "cash transaction" shall mean any transaction
in which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;
(3) the term "self-liquidating paper" shall mean any draft,
xxxx of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Issuer for the purpose of financing the
purchase, processing, manufacture, 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 Issuer arising from the making,
drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation; and
(4) the term "Issuer" shall mean any obligor upon the
Securities.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent') which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to 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 for such series and a certificate of authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
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of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
SECTION 6.15 Trustee's Application for Instructions from the
Company. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Securityholders of any or all series may be embodied
in and evidenced by one or more instruments of substantially similar tenor
signed by such specified percentage of Securityholders in person or by 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. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
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(a) The fact and date of the execution by any Holder of any
instrument may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of
deeds or administer oaths that the person executing such instruments
acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other such
officer. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also
constitute sufficient proof of the authority of the person executing
the same.
(b) The ownership of Securities shall be proved by the
Security register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the Person
in whose name any Security shall be registered upon the Security register for
such series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest, if any, on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Affiliate of the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned 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 so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Affiliate of
the Issuer or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an Officer's
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described Persons;
and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept
such Officer's Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security, provided that such revocation shall not become effective until
three business days after such filing. Except as aforesaid any such action taken
by the Holder of any Security shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution
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therefor or on registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any action taken
by the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may,
but shall not be obligated to, direct the Trustee to establish a record date for
the purpose of determining the Persons entitled to (i) waive any past default
with respect to the Securities of such series in accordance with Section 5.7 of
this Indenture, (ii) consent to any supplemental indenture in accordance with
Section 8.2 of this Indenture or (iii) waive compliance with any term, condition
or provision of any covenant hereunder. If a record date is fixed, the Holders
on such record date, or their duly designated proxies, and any such Persons,
shall be entitled to waive any such past default, consent to any such
supplemental indenture or waive compliance with any such term, condition or
provision, whether or not such Holder remains a Holder after such record date;
provided, however, that unless such waiver or consent is obtained from the
Holders, or duly designated proxies, of the requisite principal amount of
Outstanding Securities of such series prior to the date which is the 180th day
after such record date, any such waiver or consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for one or more of the
following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to
the Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the protection of the Holders of all
or any series of Securities (and if such covenants, restrictions,
conditions or provisions are to be for the protection of less than all
series of Securities, stating that the same are expressly being
included solely for the protection of such series), and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, that
in respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may
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provide for an immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series to waive
such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions as
the Issuer may deem necessary or desirable, provided that no such
action shall adversely affect the interests of the Holders of the
Securities;
(e) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
8.1 may be executed without the consent of the Holders of any of the Securities
then Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities then Outstanding of any series affected by such supplemental
indenture, the Issuer, when authorized by a resolution of the Board of Directors
(which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order), and the Trustee may, from time
to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of such series; provided, that no
such supplemental indenture shall (a) extend the final maturity of any Security,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest, if any, thereon (or, in the case of an Original Issue
Discount Security, reduce the rate of accrual of original issue discount
thereon), or reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase thereof (or the time at which any such
redemption, repayment or purchase may be made), or make the principal thereof
(including any amount in respect of original issue discount), or interest, if
any, thereon payable in any coin or currency other than that provided in the
Securities or in accordance with the terms of the Securities, or reduce the
portion of the principal amount of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof pursuant
to Section 5.1 or the amount
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thereof provable in bankruptcy pursuant to Section 5.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment or purchase at the option of
the Securityholder, in each case without the consent of the Holder of each
Security so affected, or (b) reduce the aforesaid percentage of Securities of
any series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected. No consent of any Holder of any Security shall be necessary under this
Section 8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default 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 Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Trustee shall give notice thereof to the Holders of then Outstanding Securities
of each series affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall appear on the Security
register. Any failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, shall be entitled to receive an
Officer's Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture.
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SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE, OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject
to the provisions of Section 9.2, nothing contained in this Indenture or in any
of the Securities shall prevent any consolidation or merger of the Issuer with
or into any other corporation or corporations (whether or not affiliated with
the Issuer), or successive consolidations or mergers in which the Issuer or its
successor or successors shall be a party or parties, or shall prevent any sale,
lease, exchange or other disposition of all or substantially all the property
and assets of the Issuer to any other corporation (whether or not affiliated
with the Issuer) authorized to acquire and operate the same; provided, however,
and the Issuer hereby covenants and agrees, that any such consolidation, merger,
sale, lease, exchange or other disposition shall be upon the conditions that (a)
immediately after such consolidation, merger, sale, lease, exchange or other
disposition the corporation (whether the Issuer or such other corporation)
formed by or surviving any such consolidation or merger, or to which such sale,
lease, exchange or other disposition shall have been made, shall not be in
default in the performance or observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed by the Issuer; (b) the
corporation (if other than the Issuer) formed by or surviving any such
consolidation or merger, or to which such sale, lease, exchange or other
disposition shall have been made, shall be a corporation organized under the
laws of the United States of America, any state thereof or the District of
Columbia; and (c) the due and punctual payment of the principal of and interest,
if any, on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Issuer, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee, by the corporation (if other than the Issuer) formed
by such consolidation, or into which the Issuer shall have been merged, or by
the corporation which shall have acquired or leased such property and assets.
SECTION 9.2 Securities to be Secured in Certain Events. If, upon
any such consolidation or merger, or upon any such sale, lease, exchange or
other disposition any properties or assets owned by the Issuer or a Subsidiary
immediately prior thereto would thereupon become subject to any mortgage,
security interest, pledge, lien or encumbrance, not permitted by Section 3.6
hereof, the Issuer, at or prior to consummation of such consolidation, merger,
sale, lease, exchange or other disposition, will by indenture supplemental
hereto secure the due and punctual payment of the principal of and interest, if
any, on the Securities then outstanding equally and ratably with (or prior to)
all Indebtedness secured thereby.
SECTION 9.3 Successor Corporation to be Substituted. In case of any
such consolidation, merger, sale, lease, exchange or other disposition and upon
the assumption by the successor corporation, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and interest, if any, on all of the
Securities and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, such successor
corporation shall succeed to and be substituted for the Issuer, with the same
effect as if it had
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been named herein as the party of the first part, and the Issuer (including any
intervening successor to the Issuer which shall have become the obligor
hereunder) shall be relieved of any further obligation under this Indenture and
the Securities; provided, however, that in the case of a lease of the property
and assets of the Issuer (including any such intervening successor), the Issuer
(including any such intervening successor) shall continue to be liable on its
obligations under this Indenture and the Securities to the extent, but only to
the extent, of liability to pay the principal of and interest, if any, on the
Securities at the time, places and rate prescribed in this Indenture and the
Securities. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Issuer, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease, exchange or
other disposition such changes in phraseology and form (but not in substance)
may be made in the Securities, thereafter to be issued, as may be appropriate.
SECTION 9.4 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 6.1 and 6.2, may receive an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease, exchange or other disposition and any such assumption comply with
the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest, if any, on all the Securities Outstanding (other than Securities which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due and payable,
or (b) the Issuer shall have delivered to the Trustee for cancellation all
Securities theretofore authenticated (other than Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9); and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer, then this Indenture shall
cease to be of further effect, and the Trustee, on demand of the Issuer
accompanied by an Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the satisfaction and discharge
contemplated by this provision have been complied with, and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction and discharging this Indenture. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred,
and to compensate the Trustee for any services thereafter reasonably and
properly rendered, by the Trustee in connection with this Indenture or the
Securities.
(B) If at any time (a) the Issuer shall have paid or caused to be
paid the principal of and interest, if any, on all the Securities of any series
Outstanding (other than Securities of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section 2.9)
as and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation
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all Securities of any series theretofore authenticated (other than any
Securities of such series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9), or (c) in the case of
any series of Securities with respect to which the exact amount described in
clause (ii) below can be determined at the time of making the deposit referred
to in such clause (ii), (i) all the 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 (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series, cash in an amount (other
than moneys repaid by the Trustee or any Paying Agent to the Issuer in
accordance with Section 10.4) or direct obligations of the United States of
America, backed by its full faith and credit ("U.S. Government Obligations"),
maturing as to principal and interest, if any, at such times and in such amounts
as will insure the availability of cash, or a combination thereof, sufficient in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal of and interest, if any, on all Securities of such series on
each date that such principal or interest, if any, is due and payable, and (B)
any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of this Indenture and the Securities of
such series; then the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such series on the date of the
deposit referred to in clause (ii) above and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except, in the case of clause (c) of this Section 10.1(B), as to (i) rights of
registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders
of Securities of such series to receive mandatory sinking fund payments, if any,
(iv) the rights, obligations, duties and immunities of the Trustee hereunder,
(v) the rights of the Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them and (vi) the obligations of the Issuer under Section 3.3 with
respect to Securities of such series) and the Trustee, on demand of the Issuer
accompanied by an Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent contemplated by this provision have been complied
with, and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging the same.
(C) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of this Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such a series on the 91st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders
of Securities of such series to receive mandatory sinking fund payments, if any,
(iv) the rights, obligations, duties and immunities of the Trustee hereunder,
(v) the rights of the Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them and (vi) the obligations of the Issuer under Section 3.3 with
respect to Securities of such series) and the Trustee, on demand of the Issuer
accompanied
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by an Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such
series (i) cash in an amount, or (ii) U.S. Government Obligations,
maturing as to principal and interest, if any, at such times and in
such amounts as will insure the availability of cash, or (iii) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal of and interest, if any, on all Securities of such series on
each date that such principal or interest, if any, is due and payable,
and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of this
Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument to which
the Issuer is a party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y), since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount
and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 10.4, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 10.1 shall be held in
trust, and such moneys and all moneys from such U.S. Government Obligations
shall be applied by it to the payment, either directly or through any Paying
Agent (including the Issuer acting as its own paying agent), to the Holders of
the particular Securities of such series for the payment or redemption of which
such moneys and U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any, but such moneys need not be segregated from other funds except to the
extent required by law. The Trustee and any Paying Agent shall promptly pay to
the Issuer, upon the written request of the Issuer, any excess moneys or U.S.
Government Obligations held by them at any time.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any Paying Agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such Paying
Agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
Paying Agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest, if any, shall have become
due and payable, shall, upon the
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written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such Paying Agent, and
the Holder of the Securities of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any Paying Agent
with respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer, or any partner of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
Service Corporation International, 0000 Xxxxx Xxxxxxx, P. O. Box 130548,
Xxxxxxx, Xxxxx 00000, Attention: Secretary. Any notice, direction, request or
demand by the Issuer or any Holder of Securities to or upon the Trustee shall be
deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Trustee is filed by the Trustee with the
Issuer) to 000 Xxxxxxx Xxxxxx-00X, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration.
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Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
or as required pursuant to the Trust Indenture Act of 1939, the Issuer shall
furnish to the Trustee an Officer's Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate,
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statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of principal of or interest, if any, on the Securities of any
series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any, or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, purchase or repayment, and, in the case of
payment, no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
which is required to be included herein by any of Sections 310 to 317,
inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL
BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF TEXAS, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first-class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any Security of a series designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Security of such series.
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The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest, if any, (or, in the
case of Original Issue Discount Securities, original issue discount) accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest, if any, thereon or on the portions thereof to
be redeemed (or, in the case of Original Issue Discount Securities, original
issue discount) will cease to accrue. In case any Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more Paying Agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee) an
Officer's Certificate stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officer's Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify the Issuer in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series 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 of any series shall relate, in the case of any Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place or places stated in such notice at the applicable redemption price,
together with interest, if any, accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest, if any, accrued to
said date) interest (or, in the case of Original Issue Discount Securities,
original issue discount) on the Securities or portions of Securities so called
for redemption shall cease to accrue, and, except as provided in Sections 6.5
and 10.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any other benefit or security under this Indenture,
and the Holders thereof shall have no right in respect of such Securities except
the right to receive the redemption price thereof and unpaid interest to the
date fixed for redemption. On presentation and surrender of such Securities at a
place of payment
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specified in said notice, said Securities or the specified portions thereof
shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest, if any, accrued thereon to the date fixed for
redemption; provided that payment of interest, if any, becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by, either (a)
the Issuer or (b) a Person specifically identified in such written statement as
an Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 12.5, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officer's Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of Securities of
such series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured
or otherwise ceased to exist) and are continuing, and (d) stating whether or not
the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking
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fund payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such Officer's Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officer's Certificate shall be irrevocable and
upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if any,
on or before the next succeeding sinking fund payment date. Failure of the
Issuer, on or before any such 60th day, to deliver such Officer's Certificate
and Securities (subject to the parenthetical clause in the second preceding
sentence) specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof,
and (ii) that the Issuer will make no optional sinking fund payment with respect
to such series as provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the Issuer
(or the Issuer, if it shall so request the Trustee in writing) shall cause
notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any
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moneys thereafter paid into the sinking fund, shall, during the continuance of
such default or Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 5.7 or the default cured
on or before the 60th day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section 12.5 to the redemption of such
Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, effective as of December 11, 1998.
SERVICE CORPORATION INTERNATIONAL
By: /s/ XXXXX X. SHELGER
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Name: Xxxxx X. Shelger
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Title: Sr. Vice President, General Counsel
and Secretary
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THE BANK OF NEW YORK, as Trustee
By: /s/ VAN X. XXXXX
--------------------------------------
Name: Van X. Xxxxx
------------------------------------
Title: Assistant Vice President
-----------------------------------
