EXHIBIT 4(a)
USG CORPORATION
AND
_____________________,
Trustee
Senior Debt Securities
INDENTURE
Dated as of ______________
TABLE OF CONTENTS
I DEFINITIONS
1.1 Certain Terms Defined
II SECURITIES
2.1 Forms Generally
2.2 Form of Trustee's Certificate of Authentication
2.3 Amount Unlimited: Issuable in Series
2.4 Authentication and Delivery of Securities
2.5 Execution of Securities
2.6 Certificate of Authentication
2.7 Denomination and Date of Securities; Payments of
Interest
2.8 Registration, Transfer and Exchange
2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities
2.10 Cancellation of Securities; Destruction Thereof
2.11 Temporary Securities
III COVENANTS OF THE CORPORATION
3.1 Payment of Principal and Interest
3.2 Offices for Payment, etc.
3.3 Paying Agents
3.4 Written Statement to Trustee
3.5 Luxembourg Publications
IV SECURITYHOLDERS LISTS AND REPORTS BY THECORPORATION AND
THE TRUSTEE
4.1 Corporation to Furnish Trustee Information as to
Names and Addresses of Securityholders
4.2 Preservation and Disclosure of Securityholders'
Lists
4.3 Reports by the Corporation
V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERSON EVENT OF
DEFAULT
5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default
5.2 Collection of Indebtedness By Trustee; Trustee May
Prove Debt
5.3 Application of Proceeds
5.4 Restoration of Rights on Abandonment of
Proceedings
5.5 Limitations on Suits by Securityholders
5.6 Unconditional Right of Securityholders to
Institute Certain Suits
5.7 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default
5.8 Control by Securityholders
5.9 Waiver of Past Defaults
5.10 Right of Court to Require Filing of Undertaking to
Pay Cost4
5.11 Suits for Enforcement
VI CONCERNING THE TRUSTEE
6.1 Duties of Trustee
6.2 Rights of Trustee
6.3 Individual Rights of Trustee
6.4 Trustee's Disclaimer
6.5 Notice of Defaults
6.6 Reports by Trustee to Holders
6.7 Compensation and Indemnity
6.8 Replacement of Trustee
6.9 Successor Trustee by Merger
6.10 Eligibility; Disqualification
6.11 Preferential Collection of Claims Against
Corporation
VII CONCERNING THE SECURITYHOLDERS
7.1 Evidence of Action Taken by Securityholders
7.2 Proof of Execution of Instruments
7.3 Holders to Be Treated as Owners
7.4 Securities Owned by Corporation Deemed Not
Outstanding
7.5 Right of Revocation of Action Taken
VIII SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without Consent of
Securityholders
8.2 Supplemental Indentures With Consent of
Securityholders
8.3 Effect of Supplemental Indenture
8.4 Documents to Be Given to Trustee
8.5 Notation on Securities in Respect of Supplemental
Indentures
IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE
9.1 Corporation May Consolidate, etc., on Certain
Terms
9.2 Successor Corporation Substituted
9.3 Opinion of Counsel to Trustee
X SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED MONEYS
10.1 Satisfaction and Discharge of Indenture
10.2 Application by Trustee of Funds Deposited for
Payment of Securities
10.3 Repayment of Moneys Held by Paying Agent
10.4 Return of Unclaimed Moneys Held by Trustee and
Paying Agent
10.5 Reinstatement of Corporation's Obligations
XI MISCELLANEOUS PROVISIONS
11.1 Incorporators, Stockholders, Officers and
Directors of Corporation Exempt from Individual
Liability
11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders
11.3 Successors and Assigns of Corporation Bound by
Indenture
11.4 Notices and Demands on Corporation, Trustee and
Securityholders
11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein
11.6 Payments Due on Saturdays, Sundays and Holidays
11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act
11.8 New York Law to Govern
11.9 Counterparts
11.10 Effect of Headings; Gender
11.11 Securities in a Foreign Currency or in ECU
XII REDEMPTION OF SECURITIES AND SINKING FUNDS
12.1 Applicability of Article
12.2 Election to Redeem; Notice of Redemption; Partial
Redemptions
12.3 Payment of Securities Called for Redemption
12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption
12.5 Mandatory and Optional Sinking Funds
12.6 Repayment at the Option of the Holders
USG CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of _______________
Trust Indenture
Act Section Indenture Section
Sec. 310 (a)(1) 6.10
(a)(2) 6.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 6.10
(b) 6.8,6.10
Sec. 311 (a) 6.11
(b) 6.11
Sec. 312 (a) 4.1 and 4.2
(b) 4.2
(c) 4.2
Sec. 313 (a)(l)-(5) & (7)-(8) 6.6
(a)(6) Not Applicable
(b)(1) Not Applicable
(b)(2) 6.6
(c) 6.6
(d) 6.6
Sec. 314 (a)(l)-(3) 4.3
(a)(4) 3.4
(b) Not Applicable
(c)(1) 11.5
(c)(2) 11.5
(c)(3) Not Applicable
(d) Not Applicable
(e) 11.5
(f) Not Applicable
Sec. 315 (a) 6.1
(b) 6.5
(c) 6.1
(d) 6.1
(d)(1) 6.1
(d)(2) 6.1
(d)(3) 6.1
(e) 5.10
Sec. 316 (a) 7.4
(a)(1)(A) 5.8
(a)(1)(B) 5.1,5.9
(a)(2) Not Applicable
(b) 5.6
(c) 7.1
Sec. 317 (a)(1) 5.2
(a)(2) 5.2
(b) 3.3
Sec. 318 (a) 11.7
_______________________________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
THIS INDENTURE, dated as of _________________ between
USG CORPORATION, a Delaware corporation (the "Corporation"), and
________________________, a _________________ organized under the
laws of ________________ (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Corporation has duly authorized the
issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (the "Securities") to be issued in
one or more Series; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
the Securities by the Holders thereof, it is mutually agreed for
the equal and proportionate benefit of the respective Holders from
time to time of the Securities or of a Series thereof as follows:
ARTICLE I.
DEFINITIONS
SECTION Certain Terms Defined. The following
terms (except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture and
of any indenture supplemental hereto shall have the respective
meanings specified in this Section. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or the definitions of which in the Securities Act of 1933,
as amended, are referred to in the Trust Indenture Act of 1939, as
amended, including terms defined therein by reference to the
Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in the
Trust Indenture Act of 1939, as amended, and in the Securities Act
of 1933, as amended, as in force at the date of this Indenture.
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 time of any computation. The words
"herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole, as supplemented and
amended from time to time, and not to any particular Article,
Section or other subdivision. The terms defined in this Article
have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of the United
Kingdom, will, if practicable, be the Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be
the Luxembourger Wort), published in an official language of the
country of publication customarily published at least once a day
for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or in
Luxembourg, as applicable. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means either the Board of Directors
of the Corporation or any duly authorized committee of or created
by that Board.
"Business Day" means, except as may otherwise be pro-
vided in the form of Securities of any particular Series, with
respect to any Place of Payment or place of publication, any day,
other than a Saturday or Sunday, or a day on which banking
institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, 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, then the body performing such duties on
such date.
"Conversion Agent" shall have the meaning set forth in
Section 3.2.
"Corporate Trust Office" means the principal corporate
trust office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the
date of execution of this Indenture is located at ______________
___________________________________________.
"Corporation" means USG Corporation, a Delaware
corporation, until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter "Corporation" shall mean such successor corporation.
"Corporation Notice" means the confirmation of the
Corporation signed by an officer, and transmitted to the Trustee of
the terms of the issuance of any Securities.
"Coupon" means any interest coupon appertaining to a
Security.
"defaulted interest" has the meaning specified in
Section 2.7.
"defeasance" has the meaning specified in
Section 10.1(B)(ii).
"Depositary" means, with respect to the Securities of
any Series issuable or issued in the form of one or more Registered
Global Securities, the Person designated as Depositary by the
Corporation 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 Registered Global Securities of that
Series.
"Depositary Security" means, with respect to any Series
of Securities, a Security executed by the Corporation and
authenticated and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with
this Indenture and pursuant to a resolution of the Board of
Directors as contemplated by Section 2.3, which (i) shall be
registered as to principal and interest in the name of the
Depositary or its nominee and (ii) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such Series.
"Dollar" means the coin or currency of the United States
of America which as of the time of payment is legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" has the meaning specified in
Section 5.1.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Government Obligations" means, unless otherwise
specified pursuant to Section 2.3, securities which are (i) direct
obligations of the government which issued the currency in which
the Securities of such Series are denominated for the payment of
which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by, or acting as an agency or
instrumentality of, the United States government, the payment of
which obligations is unconditionally guaranteed by such government,
and which, in either case, are full faith and credit obligations of
such government, and which are not callable or redeemable at the
option of the issuer thereof prior to their stated maturity.
"Holder", "Holder of Securities", "Registered Holder",
"Securityholder" or other similar terms mean (a) in the case of any
Registered Security, the Person in whose name such Security is
registered in the Security Register, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any coupon
appertaining thereto, as the case may be.
"Indenture" means this instrument as originally executed
and delivered or as it may from time to time be amended or
supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular Series of
Securities established as contemplated by Section 2.3.
"Journal" has the meaning specified in Section 11.11.
"Market Exchange Rate" has the meaning specified in
Section 11.11.
"Maturity" when used with respect to any Security means
the date on which the principal of such Security or an installment
of principal becomes due and payable as therein or herein provided,
whether at Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officers' Certificate" means a certificate signed on
behalf of the Corporation by the chairman of the Board of Directors
or the vice chairman or the president or any vice president and by
the treasurer, the controller, any assistant treasurer, the
secretary or any assistant secretary of the Corporation and
delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal
counsel, who may be an employee of or counsel to the Corporation,
and who shall be reasonably acceptable to the Trustee. Each
Opinion of Counsel shall include the statements provided for in
Section 11.5, if and to the extent required hereby.
"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.
"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" when used with reference to Securities,
subject to the provisions of Section 7.4, means, as of any
particular time, all Securities authenticated and delivered under
this Indenture, except
1. Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
2. Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount and in the
required currency shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Corporation)
or shall have been set aside, segregated and held in trust by
the Corporation for the Holders of such Securities (if the
Corporation 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;
3. Securities in substitution for which other
Securities shall have been authenticated and delivered, or
which shall have been paid, pursuant to the terms of
Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee and the Corporation is
presented that such Security is held by a Person in whose
hands such Security is a legal, valid and binding obligation
of the Corporation); and
4. Securities as to which defeasance has been effected
pursuant to Section 10.1(B).
In determining whether the Holders of the requisite
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 amount of the principal thereof that
would be due and payable as of the date of such determination upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 5.1.
"Paying Agent" means any Person (which may include the
Corporation) authorized by the Corporation to pay the principal of
or interest, if any, on any Security on behalf of the Corporation.
"Persons" or "Person" means any individual, corporation,
partnership, joint venture, limited liability company, association,
joint stock company, trust, 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 that Series
are payable as specified pursuant to Section 3.2.
"principal" whenever used with reference to the
Securities or any Security or any portion thereof, shall be deemed
to include "and premium, if any."
"record date" has the meaning specified in Section 2.7.
"Registered Global Security" means a Security evidencing
all or a part of a Series of Registered Securities, issued to the
Depositary for such Series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security which is
registered in the Security Register.
"Responsible Officer" when used with respect to the
Trustee means any officer within the corporate trust department (or
any successor department) of the Trustee including any vice
president, assistant vice president, assistant secretary, senior
trust officer, trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to
those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office because of his or her
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture.
"Security Register" has the meaning specified in
Section 2.8.
"Series" or "Series of Securities" means all Securities
of a similar tenor authorized by a particular resolution of the
Board of Directors.
"Stated Maturity" when used with respect to any Security
or any installment of principal thereof or interest thereon, means
the date on which the principal of such Security or such
installment of principal or interest is due and payable in
accordance with the terms thereof.
"Trust Indenture Act" or "TIA" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this
Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof until a successor Trustee shall have
become such pursuant to the provisions hereof, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
"United States of America" means the United States of
America (including the states and the District of Columbia), its
territories, possessions, the Commonwealth of Puerto Rico and other
areas subject to its jurisdiction.
"Unregistered Security" means any Security other than
a Registered Security.
"U.S. Person" means a citizen or resident of the United
States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of
America or any political subdivision thereof or an estate or trust
the income of which is subject to United States of America federal
income taxation regardless of whether such income is from sources
within or without the United States of America or whether or not
such income is effectively connected with the conduct of a trade or
business within the United States of America.
"vice president" when used with respect to the
Corporation or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before or after
the title of "vice president."
ARTICLE II.
SECURITIES
SECTION A. Forms Generally. The Securities of each Series
and the Coupons, if any, to be attached thereto shall be
substantially in such form (including temporary or definitive
global form) as shall be established by or pursuant to a resolution
of the Board of Directors 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 (the provisions of which shall be appropriate to
reflect the terms of the Series of Securities represented thereby)
and may have imprinted or otherwise reproduced thereon such legend
or legends, 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 and Coupons, if any, as
evidenced by their execution of the Securities and Coupons.
The definitive Securities and Coupons, if any, 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 and Coupons, if any, as evidenced by
their execution of such Securities and Coupons, if any.
SECTION B. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on all
Securities shall be in substantially the following form:
This is one of the Securities of the Series designated
herein and referred to in the within-mentioned Indenture.
as Trustee
By:
Authorized Signatory
or
as Trustee
By:
as Authentication Agent
By:
Authorized Signatory
SECTION C. 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 Series shall rank equally and pari passu
with all other unsecured and unsubordinated debt of the
Corporation. There shall be established in or pursuant to one or
more resolutions of the Board of Directors and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any
Series.
1. the title of the Securities of the Series (which
title shall distinguish the Securities of the Series from all
other Securities issued by the Corporation);
2. any limit upon the aggregate principal amount of the
Securities of the Series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the
Series pursuant to Sections 2.8, 2.9, 2.11, 8.5 or 12.3);
3. if other than 100% of their principal amount, the
percentage of their principal amount at which the Securities
of the Series will be offered for sale to the public;
4. if other than Dollars, the coin or currency in which
the Securities of that Series are denominated (including, but
not limited to, any Foreign Currency or ECU);
5. the date or dates on which the principal of the
Securities of the Series is payable or the method of
determination thereof;
6. the rate or rates (which may be fixed or variable),
or the method or methods of determination thereof, at which
the Securities of the Series shall bear interest, if any, the
date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable
and (in the case of Registered Securities) the record dates
for the determination of Holders to whom interest is payable;
7. the place or places where the principal of, and
interest, if any, on Securities of the Series shall be payable
(if other than as provided in Section 3.2);
8. the price or prices at which, the period or periods
within which and the terms and conditions upon which
Securities of the Series may be redeemed, in whole or in part,
at the option of the Corporation;
9. if other than the principal amount thereof, the
portion of the principal amount of Securities of the Series
which shall be payable upon declaration of acceleration of the
Maturity pursuant to Section 5.1 or provable in bankruptcy
pursuant to Section 5.2;
10. the obligation, if any, of the Corporation to
redeem, purchase or repay Securities of the Series whether
pursuant to any sinking fund or analogous provisions or
pursuant to other provisions set forth therein or at the
option of a Holder thereof and the price or prices at which
and the period or periods within which and the terms and
conditions upon which Securities of the Series shall be
redeemed, purchased or repaid, in whole or in part;
11. if other than denominations of $1,000, and any
integral multiple thereof, in the case of Registered
Securities, or $1,000 and $5,000 in the case of Unregistered
Securities, the denominations in which Securities of the
Series shall be issuable;
12. the form of the Securities, including such
legends as required by law or as the Corporation deems
necessary or appropriate and the form of any temporary global
security which may be issued;
13. if other than the coin or currency in which the
Securities of that Series are denominated, the coin or
currency in which payment of the principal of or interest on
the Securities of such Series shall be payable (including, but
not limited to, any Foreign Currency or ECU);
14. if the principal of or interest on the
Securities of such Series are to be payable, at the election
of the Corporation or a Holder thereof, in a coin or currency
other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions
upon which, such election may be made;
15. if the amount of payments of principal of and
interest on the Securities of the Series may be determined
with reference to an index, formula or method, the manner in
which such amounts shall be determined;
16. whether the Securities of the Series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities)
or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to
the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in
Section 2.8, the terms upon which Unregistered Securities of
any Series may be exchanged for Registered Securities of such
Series and vice versa;
17. whether, under what circumstances and in what
amounts the Corporation will pay additional amounts on the
Securities of the Series held by a Person who is not a U.S.
Person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the
Corporation will have the option to redeem such Securities
rather than pay such additional amounts;
18. 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;
19. if other than the Trustee, any trustees,
depositories, authenticating or Paying Agents, transfer agents
or registrars or any other agents with respect to the
Securities of such Series;
20. if the Securities of such Series do not bear
interest, the applicable dates for purposes of Section 4.1
hereof;
21. whether the Securities of such Series are to be
issuable in whole or in part in the form of one or more
Depositary Securities, and, in such case, the Depositary for
such Securities;
22. the application, if any, of Section 10.1(B)(ii)
to the Securities of the Series or any alternative or other
provisions for the defeasance (including any covenant or event
of default defeasance) of the Securities of the Series;
23. any other events of default or covenants with
respect to the Securities of such Series;
24. if applicable, any provisions, including terms
and conditions, with respect to the conversion of the
Securities of such Series; and
25. any other terms or conditions upon which the
Securities of the Series are to be issued (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one Series and Coupons, if any,
appertaining thereto shall be substantially identical except as to
denomination and except in the case of Registered Securities as may
otherwise be provided in or pursuant to such resolution of the
Board of Directors or in any such indenture supplemental hereto.
All Securities of any one Series need not be issued at the same
time, and unless otherwise provided, a Series may be reopened for
issuances of additional Securities of such Series.
SECTION D. Authentication and Delivery of Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Corporation may deliver Securities of any
Series, having attached thereto appropriate Coupons, if any,
executed by the Corporation to the Trustee for authentication, and
the Trustee shall thereupon authenticate and make available for
delivery such Securities to or upon the written order of the
Corporation, signed by both (a) the chairman of its Board of
Directors, or any vice chairman of its Board of Directors, or its
president or any vice president and (b) its treasurer or any
assistant treasurer, secretary or any assistant secretary without
any further action by the Corporation. In authenticating such
Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be
entitled to receive and (subject to Section 6.1) shall be fully
protected in relying upon:
1. a copy of any resolution or resolutions of the Board
of Directors relating to such Series, in each case certified
by the secretary or an assistant secretary of the Corporation;
2. a supplemental indenture, if any;
3. an Officers' Certificate setting forth the form and
terms of the Securities of such Series and Coupons, if any, as
required pursuant to Sections 2.1 and 2.3, respectively, and
prepared in accordance with Section 11.5;
4. an opinion of Counsel, prepared in accordance with
Section 11.5, which shall state that:
a. the form or forms and terms of such Securities,
and Coupons, if any, have been established by or
pursuant to a resolution of the Board of Directors or
by a supplemental indenture as permitted by
Sections 2.1 and 2.3 in conformity with the provisions
of this Indenture and in conformity with such resolu-
tion or supplemental indenture, as the case may be, and
b. such Securities, and Coupons, if any, have been
duly authorized, and, when authenticated and delivered
by the Trustee and issued by the Corporation in the
manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding
obligations of the Corporation enforceable in
accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting
the enforcement of creditors. Rights generally and by
general equitable principles, regardless of whether
such enforceability is considered in a proceeding in
equity or at law.
Notwithstanding the provisions of Section 2.3 and of the
preceding paragraph, if all Securities of a Series are not to be
originally issued at one time, it shall not be necessary to deliver
the resolution of the Board of Directors and/or Officers'
Certificate otherwise required pursuant to Section 2.3 or the
Officers' Certificate and opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such Series if such documents
are delivered at or prior to the time of authentication upon
original issuance of the first Security of such Series to be
issued. After the original issuance of the first Security of such
Series to be issued, any separate request by the Corporation that
the Trustee authenticate Securities of such Series for original
issuance will be deemed to be a certification by the Corporation
that it is in compliance with all conditions precedent provided for
in this Indenture relating to the authentication and delivery of
such Securities.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the
Trustee is advised by counsel in good faith that the issuance of
such Securities would expose the Trustee to personal liability or
is unlawful.
If the Corporation shall establish pursuant to
Section 2.3 that the Securities of a Series are to be issued in the
form of one or more Registered Global Securities, then the
Corporation shall execute and the Trustee shall, in accordance with
this Section, authenticate and deliver one or more Registered
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 issued and not yet cancelled, (ii) shall
be registered in the name of the Depositary for such Registered
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 E. Execution of Securities. The Securities
and, if applicable, each Coupon appertaining thereto, shall be
signed on behalf of the Corporation by both (a) the chairman of its
Board of Directors or its president or any vice president and
(b) its treasurer or any assistant treasurer or its secretary or
any assistant secretary, under its corporate seal (except in the
case of Coupons) which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of such
officers. The seal of the Corporation may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the 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 Corporation who shall have
signed any of the Securities or Coupons, if any, shall cease to be
such officer before the Security or Coupon so signed (or the
Security to which the Coupon so signed appertains) shall be
authenticated and delivered by the Trustee or disposed of by the
Corporation, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the Person who
signed such Security or Coupon had not ceased to be such officer of
the Corporation; and any Security or Coupon may be signed on behalf
of the Corporation by such Persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers
of the Corporation, although at the date of the execution and
delivery of this Indenture any such Person was not such an officer.
SECTION F. Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited and executed by the
Trustee by the manual signature of one of its authorized
signatories shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication
on the Security to which such Coupon appertains shall have been
duly executed by the Trustee. The execution of such certificate by
the Trustee upon any Security executed by the Corporation 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.
Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never
issued and sold by the Corporation, the Corporation shall deliver
such Security to the Trustee for cancellation as provided in
Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an Opinion
of Counsel) stating that such Security has never been issued and
sold by the Corporation, for all purposes of the Indenture such
Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of
the Indenture.
SECTION G. Denomination and Date of Securities;
Payments of Interest. The Securities of each Series shall be
issuable as Registered Securities or Unregistered Securities in
denominations as shall be specified as contemplated by Section 2.3.
In the absence of any such specification with respect to the
Securities of any Series, Registered Securities shall be issuable
in denominations of $1,000 and any integral multiple thereof and
Unregistered Securities shall be issuable in denominations of
$1,000 and $5,000. 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 Corporation
executing the same may determine with the approval of the Trustee
as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in the resolution or resolutions of the Board of Directors
of the Corporation referred to in Section 2.3. The Securities of
each Series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated
by Section 2.3.
Unless otherwise provided as contemplated by
Section 2.3, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any interest
payment date shall be paid to the Person in whose name that
Registered Security (or one or more predecessor Registered
Securities) is registered at the close of business on the regular
record date for the payment of such interest.
The term "record date" as used with respect to any
interest payment date (except for a date for payment of defaulted
interest) shall mean the date specified as such in the terms of the
Securities of any particular Series, or, if no such date is so
specified, the close of business on the fifteenth day preceding
such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is
payable, but is not punctually paid or duly provided for, on any
interest payment date (called "defaulted interest" for purposes of
this Section) shall forthwith cease to be payable to the Registered
Holder on the relevant record date by virtue of his having been
such Holder; and such defaulted interest may be paid by the
Corporation, at its election in each case, as provided in
clause (1) or clause (2) below:
(1) The Corporation may elect to make payment of
any defaulted interest to the Persons in whose names any such
Securities (or their respective predecessor Securities) are
registered at the close of business on a special record date
for the payment of such defaulted interest, which shall be
fixed in the following manner. The Corporation shall notify
the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Security of such Series and the
date of the proposed payment, and at the same time the
Corporation shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect
of such defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such
defaulted interest as in this clause provided. Thereupon the
Trustee shall fix a special record date for the payment of
such defaulted interest in respect of Securities of such
Series which shall be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Corporation of such special record date and, in the name and
at the expense of the Corporation, shall cause notice of the
proposed payment of such defaulted interest and the special
record date thereof to be mailed, first class postage prepaid,
to each Registered Holder at his address as it appears in the
Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such defaulted
interest and the special record date therefor having been
mailed as aforesaid, such defaulted interest in respect of
Securities of such Series shall be paid to the Person in whose
names such Securities (or their respective predecessor
Securities) are registered on such special record date and
such defaulted interest shall no longer be payable pursuant to
the following clause (2).
(2) The Corporation may make payment of any
defaulted interest on the Securities of any Series in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of that Series
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Corporation to the
Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION H. Registration, Transfer and Exchange. The
Corporation will cause to be kept at each office or agency to be
maintained for the purpose as provided in Section 3.2 for each
Series of Securities a register or registers (herein sometimes
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Corporation will
provide for the registration and the registration of the transfer
of, the Registered Securities. The Trustee is hereby appointed
Security registrar for purposes of registering, and registering
transfers of, the Securities.
Upon surrender for registration of transfer of any
Registered Security of any Series at any such office or agency to
be maintained for the purpose as provided in Section 3.2, the
Corporation shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or
transferees a new Registered Security or Registered Securities of
the same Series and of a like tenor and containing the same terms
(other than the principal amount thereof, if more than one
Registered Security is executed, authenticated and delivered with
respect to any Registered Security so presented, in which case the
aggregate principal amount of the executed, authenticated and
delivered Registered Securities shall equal the principal amount of
the Security presented in respect thereof) and conditions.
Unregistered Securities (except for any temporary
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary Unregistered Global Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any Series (other than a Registered Global Security,
except as set forth below) may be exchanged for a Registered
Security or Registered Securities of such Series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the
agency of the Corporation that shall be maintained for such purpose
in accordance with Section 3.2 and upon payment, if the Corporation
shall so require, of the charges hereinafter provided. If the
Securities of any Series are issued in both registered and
unregistered form, except as otherwise specified pursuant to
Section 2.3, at the option of the Holder thereof, Unregistered
Securities of any Series may be exchanged for Registered Securities
of such Series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Corporation that
shall be maintained for such purpose in accordance with
Section 3.2, with, in the case of Unregistered Securities that have
Coupons attached, all unmatured Coupons and all matured Coupons in
default thereto appertaining, and upon payment, if the Corporation
shall so require, of the charges hereinafter provided. At the
option of the Holder thereof, if Unregistered Securities of any
Series, maturity date, interest rate and original issue date are
issued in more than one authorized denomination, except as
otherwise specified pursuant to Section 2.3, such Unregistered
Securities may be exchanged for Unregistered Securities of such
Series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to
be exchanged at the agency of the Corporation that shall be
maintained for such purpose in accordance with Section 3.2 or as
specified pursuant to Section 2.3, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default appertaining thereto,
and upon payment, if the Corporation shall so require, of the
charges hereinafter provided. Unless otherwise specified pursuant
to Section 2.3, Registered Securities of any Series may not be
exchanged for Unregistered Securities of such Series. Whenever any
Securities are so surrendered for exchange, the Corporation shall
execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any exchange
or transfer provided for in this Indenture shall be promptly
cancelled and disposed of by the Trustee and the Trustee will
deliver a certificate of disposition thereof to the Corporation.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Corporation,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such transfer or
exchange.
Every Security presented or surrendered for registration
of transfer or exchange shall (if so required by the Corporation or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Corporation and
the Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
No service charge shall be made to the Holder for any
registration of transfer or exchange of Securities, but the
Corporation may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities, other than exchanges
pursuant to Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Corporation shall not be required (i) to issue,
register the transfer of or exchange any Security during a 15-day
period prior to the day of mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in
the case of any Security to be redeemed in part, the portion
thereof not redeemed.
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 Registered Global Security
representing all or a portion of the Securities of a Series may not
be transferred except as a whole by the Depositary for such Series
to a nominee of such Depositary or by a nominee of such Depositary
to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
Series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered
Securities of a Series represented by one or more Registered Global
Securities notifies the Corporation that it is unwilling or unable
to continue as Depositary for such Registered Securities or if at
any time the Depositary for such Registered Securities shall no
longer be eligible under Section 2.4, the Corporation shall appoint
a successor Depositary with respect to such Registered Securities.
If a successor Depositary for such Registered Securities is not
appointed by the Corporation within 90 days after the Corporation
receives such notice or becomes aware of such ineligibility, the
Corporation's election pursuant to Section 2.3 that such Registered
Securities be represented by one or more Registered Global
Securities shall no longer be effective and the Corporation will
execute, and the Trustee, upon receipt of an Officers' Certificate
for the authentication and delivery of definitive Securities of
such Series, will authenticate and deliver, Securities of such
Series in definitive registered form without Coupons, in any
authorized denominations, in an aggregate principal amount equal to
the principal amount of the Registered Global Security or
Securities representing such Registered Securities in exchange for
such Registered Global Security or Securities.
The Corporation may at any time and in its sole
discretion determine that the Registered Securities of any Series
issued in the form of one or more Registered Global Securities
shall no longer be represented by a Registered Global Security or
Securities. In such event the Corporation will execute, and the
Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
Series, will authenticate and deliver, Securities of such Series in
definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If an Event of Default occurs and is continuing with
respect to Registered Securities of any Series issued in the form
of one or more Registered Global Securities, upon written notice
from the Depositary, the Corporation will execute, and the Trustee,
upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such Series, will authenticate
and deliver, Securities of such Series in definitive registered
forms without Coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the
Registered Global Security or Securities, representing such
Registered Securities, in exchange for such Registered Global
Security or Securities.
If specified by the Corporation pursuant to Section 2.3
with respect to Securities represented by a Registered Global
Security, the Depositary for such Registered Global Security may
surrender such Registered 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 Corporation and such
Depositary. Thereupon, the Corporation shall execute, and the
Trustee shall authenticate and deliver, without service charge to
the Holder,
a. to the Person specified by such Depositary a
new Registered 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 Registered Global Security; and
b. to such Depositary a new Registered Global
Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered
Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall be
cancelled by the Trustee or an agent of the Corporation or the
Trustee. Securities in definitive registered form without Coupons
issued in exchange for a Registered Global Security pursuant to
this Section 2.8 shall be registered in such names and in such
authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee or
agent of the Corporation or the Trustee. The Trustee or such agent
shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
Notwithstanding anything herein or in the terms of any
Series of Securities to the contrary, none of the Corporation, the
Trustee or any agent of the Corporation or the Trustee (any of
which, other than the Corporation, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if
such exchange would result in adverse Federal income tax
consequences to the Corporation (such as, for example, the
inability of the Corporation to deduct from its income, as computed
for Federal income tax purposes, the interest payable on the
Unregistered Securities) under then applicable United States
Federal income tax laws.
SECTION I. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security or
any Coupon appertaining to any Security shall become mutilated or
defaced or be destroyed, lost or stolen, then, in the absence of
notice to the Corporation or the Trustee that the Security has been
acquired by a bona fide purchaser, the Corporation shall execute,
and upon the written request of any officer of the Corporation, the
Trustee shall authenticate and make available for delivery a new
Security of the same Series and of like tenor and principal amount
and with the same terms and conditions, bearing a number not
contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security or in lieu of and substitution for
the Security so destroyed, lost or stolen, in each case together
with Coupons corresponding to the Coupons appertaining to the
Securities so mutilated, defaced, destroyed, lost or stolen. In
every case the applicant for a substitute Security or Coupon shall
furnish to the Corporation and to the Trustee and to any agent of
the Corporation or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them
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 and related Coupons to
the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon,
the Corporation may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee or its agent) connected therewith. In case
any Security or Coupon which has matured or is about to mature or
has been called for redemption in full or is being surrendered for
conversion in fall shall become mutilated or defaced or be
destroyed, lost or stolen, the Corporation may, instead of issuing
a substitute Security, pay or authorize the payment of the same or
the relevant Coupon (without surrender thereof except in the case
of a mutilated or defaced Security); provided, however, that unless
otherwise provided pursuant to Section 2.3, the applicant for such
payment shall furnish to the Corporation and to the Trustee and any
agent of the Corporation or the Trustee such security or indemnity
as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also
furnish to the Corporation and the Trustee and any agent of the
Corporation or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership
thereof.
Every substitute Security or Coupon of any Series issued
pursuant to the provisions of this Section by virtue of the fact
that any Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Corporation,
whether or not the destroyed, lost or stolen Security or Coupon
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 or Coupons of such Series duly
authenticated and delivered hereunder. All Securities and Coupons
shall be held and owned upon the express condition that, to the
extent permitted by the law, the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, defaced,
destroyed, lost or stolen Securities and Coupons 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 J. Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer, exchange or conversion, or
for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Corporation or any agent of the
Corporation or the Trustee, be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu
thereof, except as expressly permitted by any of the provisions of
this Indenture. The Corporation may at any time deliver to the
Trustee for cancellation any Securities or Coupons previously
authenticated hereunder which the Corporation has not issued and
sold and all Securities or Coupons so delivered shall be promptly
cancelled by the Trustee. The Trustee shall return cancelled
Securities and Coupons held by it or provide a certificate of
destruction to the Corporation. If the Corporation shall acquire
any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness
represented by such Securities or Coupons unless and until the same
are delivered to the Trustee for cancellation.
SECTION K. Temporary Securities. Pending the
preparation of definitive Securities for any Series, the
Corporation may execute and the Trustee shall authenticate and make
available for delivery temporary Securities for such Series
(printed, lithographed, typewritten or otherwise reproduced, in
each case in form reasonably acceptable to the Trustee). Temporary
Securities of any Series shall be issuable as Registered Securities
without Coupons, or as Unregistered Securities with or without
Coupons attached thereto, of 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 Registered Securities, all as may be
determined by the Corporation with the reasonable concurrence of
the Trustee. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Corporation 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 Corporation
shall execute and shall furnish definitive Securities of such
Series and thereupon temporary Securities of such Series may be
surrendered in exchange therefor without charge to the Holder at
each office or agency to be maintained by the Corporation for that
purpose pursuant to Section 3.2 and, in the case of Unregistered
Securities, at any agency maintained by the Corporation for such
purpose as specified pursuant to Section 2.3, and the Trustee shall
authenticate and make available for delivery in exchange for such
temporary Securities of such Series an equal aggregate principal
amount of definitive Securities of the same Series of authorized
denominations and, in the case of Unregistered Securities having
attached thereto any appropriate Coupons. 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. The provisions of this Section are subject to any
restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any Series that may be established
pursuant to Section 2.3 (including any provision that Unregistered
Securities of such Series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary
or agency located outside the United States and the procedure
pursuant to which definitive or global Unregistered Securities of
such Series would be issued in exchange for such temporary global
Unregistered Security).
ARTICLE III.
COVENANTS OF THE CORPORATION
SECTION A. Payment of Principal and Interest. The
Corporation covenants and agrees for the benefit of each particular
Series of Securities that it will duly and punctually pay or cause
to be paid the principal of, and interest on, each of the
Securities of such Series in accordance with the terms of such
Securities and in the Coupons, if any, appertaining thereto and in
this Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the terms
of such Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest installments as
are evidenced thereby as they severally mature. If any temporary
Unregistered Security provides that interest thereon may be paid
while such Security is in temporary form, the interest on any such
temporary Unregistered Security (together with any additional
amounts payable pursuant to the terms of such Security) shall be
paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other installments of interest, if any,
only upon presentation of such Securities for notation thereon of
the payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.3. The
interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be
payable only to or upon the written order of the Holders thereof
and at the option of the Corporation may be paid by wire transfer
(to Holders of $10,000,000 or more of Registered Securities) or by
mailing checks for such interest payable to or upon the written
order of such Holders at their last addresses as they appear on the
Security Register.
Notwithstanding the provisions of Section 2.3 and
Section 2.7, unless otherwise specified as contemplated by
Section 2.3, payment of principal of and any interest on any
Security in definitive global form shall be made to the Person or
Persons specified therein.
Except as provided in the preceding paragraph, the
Corporation, the Trustee and any agent of the Corporation and the
Trustee shall treat a Person as the Holder of such principal amount
of Outstanding Securities represented by a definitive global
Security as shall be specified in a written statement of the Holder
of such definitive global Security.
SECTION B. Offices for Payment, etc. So long as any
of the Securities remain Outstanding, the Corporation will maintain
the following for each Series: an office or agency (a) where the
Securities may be presented for payment, (b) where the Registered
Securities may be presented for registration of transfer and for
exchange as provided in this Indenture, (c) if applicable, an
office or Agency where the Securities may be presented for
conversion (the "Conversion Agent"), and (d) where notices and
demands may be served upon the Corporation in respect of the
Securities of any Series, the Coupons appertaining thereto, or this
Indenture. The Corporation will maintain one or more agencies in
a city or cities located outside the United States (including any
city in which such an agency is required to be maintained under the
rules of any stock exchange on which the Securities of such Series
are listed) where the Unregistered Securities, if any, of each
Series and Coupons, if any, appertaining thereto may be presented
for payment. No payment on any Unregistered Security or Coupon
will be made upon presentation of such Unregistered Security or
Coupon at an agency of the Corporation within the United States nor
will any payment be made by transfer to an account in, or by mail
to an address in, the United States unless, pursuant to applicable
United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Corporation.
Notwithstanding the foregoing, payments in Dollars of Unregistered
Securities of any Series and Coupons appertaining thereto which are
payable in Dollars may be made at an agency of the Corporation
within the United States if such payment in Dollars at each agency
maintained by the Corporation outside the United States for payment
on such Unregistered Securities is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Corporation will give to the Trustee written notice
of the location of any such office or agency and of any change of
location thereof. In case the Corporation shall fail to so
designate or maintain any such office or agency or shall fail to
give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office. Unless otherwise specified
pursuant to Section 2.3, the Trustee is hereby appointed Paying
Agent and Conversion Agent.
SECTION C. Paying Agents. Whenever the Corporation
shall appoint a Paying Agent other than the Trustee with respect to
the Securities of any Series, 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,
1. that it will hold all sums received by it as such
Agent for the payment of the principal of or interest on the
Securities of such Series (whether such sums have been paid to
it by the Corporation or by any other obligor on the
Securities of such Series) in trust for the benefit of the
Holders of the Securities of such Series, or Coupons
appertaining thereto, if any, or of the Trustee, and upon the
occurrence of an Event of Default and upon the written request
of the Trustee, pay over all such sums received by it to the
Trustee, and
2. that it will give the Trustee notice of any failure
by the Corporation (or by any other obligor on the Securities
of such Series) to make any payment of the principal of or
interest on the Securities of such Series when the same shall
be due and payable.
The Corporation will, on or prior to each due date of
the principal of or interest on the Securities of such Series,
deposit in a timely manner with the Paying Agent a sum sufficient
to pay such principal or interest so becoming due, and (unless such
Paying Agent is the Trustee) the Corporation will promptly notify
the Trustee of any failure to take such action.
If the Corporation shall act as its own Paying Agent
with respect to the Securities of any Series, it will, on or before
each due date of the principal of or interest on the Securities of
such Series, set aside, segregate and hold in trust for the benefit
of the Holders of the Securities of such Series or the Coupons
appertaining thereto a sum sufficient to pay such principal or
interest so becoming due. The Corporation will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstand-
ing, but subject to Section 10.1, the Corporation may at any time,
for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all Series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for any such Series by the Corporation or any
Paying Agent hereunder, as required by this Section, such sums to
be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section is subject to the provisions of Sections 10.3 and
10.4.
SECTION D. Written Statement to Trustee. The
Corporation will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Corporation ending after the date
hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting
officer of the Corporation as to his or her knowledge, after due
inquiry, of the Corporation's compliance with all conditions and
covenants under the Indenture (such compliance to be determined
without regard to any period of grace or requirement of notice
provided under the Indenture), and if the Corporation shall not be
in compliance, specifying all such defaults or non-compliance and
the nature and status thereof.
SECTION E. Luxembourg Publications. In the event of
the publication of any notice pursuant to Section 8.2, 10.4 or
12.2, the party making such publication in the Borough of
Manhattan, The City of New York and London shall also, to the
extent that notice is required to be given to Holders of Securities
of any Series by applicable Luxembourg law or stock exchange
regulations, as evidenced by an Officers' Certificate delivered to
such party, make a similar publication in Luxembourg.
ARTICLE IV.
SECURITYHOLDERS LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE
SECTION A. Corporation to Furnish Trustee Information
as to Names and Addresses of Securityholders. The Corporation
covenants and agrees that it will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Registered
Securities of each Series:
1. semiannually and not more than 15 days after each
record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date
and on dates to be determined pursuant to Section 2.3 for non-
interest bearing Registered Securities in each year, and
2. at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the
Corporation of any such request, such list to be as of a date
not more than 15 days prior to the time such information is
furnished,
provided that if and so long as the Trustee shall be the Security
registrar for such Series and all of the Securities of any Series
are Registered Securities, such list shall not be required to be
furnished.
SECTION B. Preservation and Disclosure of
Securityholders' Lists.
1. 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 Registered Securities
contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as
Security registrar 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.
2. In case three or more Holders of Securities of any
Series (hereinafter referred to as "applicants") apply in writing
to the Trustee and furnish to the Trustee reasonable proof that
each such applicant has owned a Security 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
a. 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, or
b. inform such applicants as to the approximate number
of Holders of Registered Securities of such Series or of all
Registered 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, 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 Registered 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, 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 Registered Securities of such Series or of all
Registered Securities, as the case may be, or could 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 such order sustaining one or
more of such objections, the Commission shall find, after notice
and opportunity for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such 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.
3. Each and every Holder of Securities and Coupons, by
receiving and holding the same, agrees with the Corporation
and the Trustee that neither the Corporation nor the Trustee
nor any agent of the Corporation 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, 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 C. Reports by the Corporation. The
Corporation covenants:
1. to file with the Trustee, within 15 days after the
Corporation 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 Corporation 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 Corporation 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 security listed and registered on a national
securities exchange as may be prescribed from time to time in
such rules and regulations;
2. 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
Corporation with the conditions and covenants provided for in
this Indenture as may be required from time to time by such
rules and regulations; and
3. to transmit by mail to the Holders of Securities in
the manner and to the extent required by Sections 6.6 and
11.4, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents, and
reports required to be filed by the Corporation pursuant to
subsections (a) and (b) of this Section as may be required to
be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION A. Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to
Securities of any Series wherever used herein, means any one of the
following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body) unless it is either inapplicable to a particular Series or it
is specifically deleted or modified in or pursuant to the
supplemental indenture or resolution of the Board of Directors
establishing such Series of Securities or in the form of Security
for such Series:
1. 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
2. default in the payment of all or any part 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 any redemption, by declaration or otherwise; or
3. default in the performance, or breach of any
covenant or warranty of the Corporation contained in the
Securities of such Series or in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for
the benefit of a Series of Securities other than that Series),
and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified
mail, to the Corporation by the Trustee or to the Corporation
and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that Series a written
notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of
Default" hereunder; or
4. the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Corporation in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Corporation under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Corporation or of all or any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and
the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period
of 90 consecutive days; or
5. the commencement by the Corporation of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Corporation in an
involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Corporation or of all or any substantial part of its property,
or the making by it of an assignment for the benefit of
creditors; or
6. any other Event of Default provided with respect to
Securities of such Series.
If an Event of Default occurs and is continuing with respect to the
Securities of any Series, then and in each and every such case,
unless the principal of all Securities of such Series shall have
already become due and payable, either the Trustee for such Series
or the Holders of not less than 25% in aggregate principal amount
of the Securities of such Series then Outstanding hereunder, by
notice in writing to the Corporation (and to the Trustee if given
by such Holders), may declare the entire principal (or, if the
Securities of such affected 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 to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and
payable. This provision, however, is subject to the condition that
if at any time after the principal (or, if the Securities of such
affected Series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of
such Series) 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 Corporation shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments
of interest, if any, upon all the Securities of such Series and the
principal of any and all Securities of such Series which shall have
become due otherwise than by such acceleration (with interest upon
such principal and, to the extent that payment of such interest is
enforceable under applicable law, upon overdue installments of
interest, at the same rate as the rate of interest or yield to
maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such Series to the date of such
payment or deposit) and in Dollars such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its
agents, attorneys and counsel and all other expenses and
liabilities incurred, and all advances with interest made, by the
Trustee, its agents, attorneys and counsel and if any and all
defaults under this Indenture, other than the nonpayment of the
principal of Securities of such Series which shall have become due
by such acceleration, shall have been remedied, 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 Corporation and to the Trustee for the Securities of
such Series, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall have
been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal
amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof
as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing
thereunder, shall constitute payment in full of the Original Issue
Discount Securities.
SECTION B. Collection of Indebtedness By Trustee;
Trustee May Prove Debt. The Corporation covenants that (a) in case
default shall be made in the payment of any installment of interest
on any of the Securities of any Series when such interest shall
have become due and payable, and such default shall have continued
for a period of 30 days, or (b) in case default shall be made in
the payment of all or any part of the principal of any of the
Securities of any Series when the same shall have become due and
payable, whether upon Maturity or upon any redemption or by
declaration or otherwise, then upon demand of the Trustee for the
Securities of such Series, the Corporation will pay to the Trustee
for the Securities of such Series for the benefit of the Holders of
the Securities of such Series the whole amount that then shall have
become due and payable on all Securities of such Series for
principal of or interest, as the case may be (with interest to the
date of such payment upon the overdue principal and, to the extent
that payment of such interest is enforceable under applicable law,
on overdue installments of interest at the same rate as the rate of
interest or yield to maturity (in the case of Original Issue
Discount Securities) specified in 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, and all expenses and liabilities incurred and all
advances with interest made by, the Trustee and each predecessor
Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the
Corporation may pay the principal of and interest on the Securities
of any Series to the Persons entitled thereto, whether or not the
principal of and interest on the Securities of such Series are
overdue.
In case the Corporation shall fail forthwith to pay such
amounts upon such demand, the Trustee for the Securities of such
Series, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree
against the Corporation or other obligor upon such Securities and
collect in the manner provided by law out of the property of the
Corporation or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to
the Corporation or any other obligor upon the Securities under
Title 11 of the United States Code or any other applicable Federal
or State bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Corporation or its
property or such other obligor, or in case of any other comparable
judicial proceedings relative to the Corporation or other obligor
under the Securities of any Series, or to the creditors or property
of the Corporation or such other obligor, the Trustee, irrespective
of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
1. to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of any
Series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such
Series) owing and unpaid in respect of the Securities of any
Series, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to,
and all expenses and liabilities incurred and all advances
with interest made by, the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel,
except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative
to the Corporation or other obligor upon all Securities of any
Series, or to the creditors or property of the Corporation or
such other obligor, and
2. to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute
all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any
trustee, receiver, or liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders
to make payments to the Trustee for the Securities of such
Series, and, in the event that such Trustee shall consent to
the making of payments directly to the Securityholders, to pay
to such Trustee such amounts as shall be sufficient to cover
reasonable compensation to, and all expenses and liabilities
incurred and all advances with interest made by, such Trustee,
each predecessor Trustee and their respective agents,
attorneys and counsel and all other amounts due to such
Trustee or any predecessor Trustee pursuant to Section 6.7,
except as a result of Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf
of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of any Series or
the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities or Coupons appertaining
to such Securities, may be enforced by the Trustee for the
Securities of such Series or Coupons without the possession of any
of the Securities of such Series or Coupons appertaining to such
Securities or the production thereof at any trial or other
proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of
the Trustee, each predecessor Trustee and their respective agents
and attorneys, shall be for the ratable benefit of the Holders of
the Securities or Coupons appertaining to such Securities in
respect of which such action was taken.
In any proceedings brought by the Trustee for the
Securities of such Series (and also any proceedings involving the
interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Securities or Coupons appertaining to such
Securities in respect to which such action was taken, and it shall
not be necessary to make any Holders of such Securities or Coupons
appertaining to such Securities parties to any such proceedings.
SECTION C. Application of Proceeds. Any moneys
collected by the Trustee for the Securities of such Series pursuant
to this Article in respect of the Securities of any Series shall be
applied in the following order at the date or dates fixed by such
Trustee and, in case of the distribution of such moneys on account
of principal or interest, upon presentation of the several
Securities and Coupons appertaining to such Securities in respect
of which moneys have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such Series
in reduced principal amounts in exchange for the presented
Securities of like Series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of reasonable costs and expenses
applicable to such Series in respect of which moneys have been
collected, including reasonable compensation to, and all
reasonable expenses and liabilities incurred and all advances
with interest made by, the Trustee and each predecessor
Trustee and their respective agents and attorneys and all
other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.7, except as a result of Trustee's
negligence or bad faith;
SECOND: To the payment of the amounts then due and
unpaid for interest on the Securities of such Series for which
principal is not yet due and payable in respect of which
moneys have been collected, such payments to be made ratably
to the Persons entitled thereto, without discrimination or
preference, according to the amounts then due and payable on
such Securities for interest;
THIRD: To the payment of the amounts then due and
unpaid for principal of and interest on the Securities of such
Series for which principal is due and payable in respect of
which moneys have been collected, such payments to be made
ratably to the Persons entitled thereto, without
discrimination or preference, according to the amounts then
due and payable on such Securities for principal and interest,
respectively; and
FOURTH: To the payment of the remainder, if any, to the
Corporation or any other Person lawfully entitled thereto.
SECTION D. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee for the Securities of any Series
or any Holder shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely
to the Trustee or to such Holder, then and in every such case,
subject to the determination in any such proceeding, the
Corporation, the Trustee and the Holders shall be restored
respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Corporation, the Trustee and
the Securityholders shall continue as though no such proceedings
had been taken.
SECTION E. Limitations on Suits by Securityholders.
No Holder of any Security of any Series or of any Coupon
appertaining thereto shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, or for the appointment
of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such Series then
Outstanding shall have made written request upon the Trustee to
institute such action or proceedings 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 failed to institute any such action or
proceeding and no direction inconsistent with such written request
shall have been given to the Trustee during such 60 day period by
Holders of a majority in principal amount of the Securities of such
Series then Outstanding; it being understood and intended, and
being expressly covenanted by the taker and Holder of every
Security or Coupon with every other taker and Holder of a Security
or Coupon and the Trustee, that no one or more Holders of
Securities of any Series or Coupons appertaining to such Securities
shall have any right in any manner whatever, by virtue or by
availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other such Holder of Securities or
Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable Series and Coupons
appertaining to such Securities.
SECTION F. Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any provision in this
Indenture and any provision of any Security, the right of any
Holder of any Security or Coupon to receive payment of the
principal of and (subject to Section 2.7) interest on such Security
or Coupon at the respective rates, in the respective amount on or
after the respective due dates expressed in such Security or
Coupon, and 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 X. Xxxxxx and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section 2.9
and Section 5.5, no right or remedy herein conferred upon or
reserved to the Trustee or to the Securityholders is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any Security-
holder to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such
Event of Default or an acquiescence therein; and, subject to
Section 5.5, every power and remedy given by this Indenture 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 the Securityholders.
SECTION H. Control by Securityholders. The Holders
of a majority in aggregate principal amount of the Securities of
each Series affected (with each Series treated as a separate class)
at the time 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 the Securities of such
Series by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this
Indenture and provided further that the Trustee, being advised by
counsel, shall have the right to decline to follow any such
direction if the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders
of the Securities of all Series so affected not joining in the
giving of said direction.
SECTION I. Waiver of Past Defaults. The Holders of
not less than a majority in aggregate principal amount of the
Securities of any Series at the time Outstanding may on behalf of
the Holders of all the Securities of such Series waive any past
default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities of
such Series.
Upon any such waiver, such default shall cease to exist
and be deemed to have been cured and not to have occurred, and any
Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon.
SECTION J. Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree, and
each Holder of any Security or Coupon, by his acceptance thereof,
shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any
Series holding in the aggregate more than 10% in aggregate
principal amount of the Securities of such Series, or to any suit
instituted by any Securityholder for the enforcement of the payment
of the principal of or interest on any Security on or after the due
date expressed in such Security or any date fixed for redemption.
SECTION K. Suits for Enforcement. In case an Event
of Default has occurred, has not been waived and is continuing, 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 at law or in equity or 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.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION A. Duties of Trustee.
1. If an Event of Default has occurred and is
continuing with respect to the Securities of any Series, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise
as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
2. Except during the continuance of an Event of Default
with respect to the Securities of any Series:
a. the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
b. in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming on their face to the requirements of this
Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or
not they conform on their face to the requirements of this
Indenture.
3. The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
a. this paragraph (c) does not limit the effect of
paragraph (b) of this Section 6.1;
b. the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it
is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
c. the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 5.8.
4.Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
5.The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any
financial liability unless it receives indemnity satisfactory to it
against any loss, liability or expense.
0.Xxxxx held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed in writing with the
Corporation.
SECTION B. Rights of Trustee. Subject to Section 6.1
and the provisions of the Trust Indenture Act:
1.The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
2.Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of
Counsel.
3.Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which
it believes to be authorized or within its rights or powers.
4.The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel.
5.The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction.
6.The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION C. Individual Rights of Trustee. The Trustee
in its individual or any other capacity may become the owner or
pledgee of Securities or Coupons and may otherwise deal with the
Corporation or its affiliates with the same rights it would have if
it were not Trustee. Any Paying Agent, registrar or coregistrar
may do the same with like rights. However, the Trustee must comply
with Sections 6.10 and 6.11.
SECTION D. Trustee's Disclaimer. The Trustee makes
no representation as to the validity or adequacy of this Indenture
or the Securities or Coupons, it shall not be accountable for the
Corporation's use of the proceeds from the Securities, it shall not
be responsible for any statement in the registration statement for
the Securities under the Securities Act of 1933 or in the Indenture
or the Securities (other than its certificate of authentication).
SECTION E. Notice of Defaults. If a default occurs
and is continuing with respect to any Securities of any Series and
if it is known to the Trustee through oral or written notice to a
corporate trust officer, the Trustee shall give to each
Securityholder of such Series notice of the default within 90 days
after such default occurs. Except in the case of a default
described in Section 5.1(a) or (b), the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the
interests of Securityholders of such Series.
SECTION F. Reports by Trustee to Holders. Within 60
days after each June 1 beginning with the June 1 following the date
of this Indenture, the Trustee shall mail to each Securityholder of
any Series and each other Person specified in TIA Section 313(c) a
brief report dated as of such June 1 that complies with TIA Section
313(a) to the extent required thereby. The Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the Commission
and each securities exchange on which the Securities of any Series
are listed. The Corporation agrees promptly to notify the Trustee
whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION G. Compensation and Indemnity. The
Corporation agrees:
0.xx pay to the Trustee from time to time in Dollars such compensation
as shall be agreed to in writing between the Corporation and the
Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
0.xx reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances with interest thereon incurred or
made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the
expenses, advances with interest thereon and disbursements of
its agents and counsel), except to the extent any such
expense, disbursement or advance may be attributable to its
negligence or bad faith; and
0.xx indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in
connection with the acceptance or administration of this trust
or the performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder (including the
reasonable compensation and the expenses, advances with
interest thereon and disbursements of its agents and counsel),
except to the extent that any such loss, liability or expense
may be attributable to its negligence or bad faith.
As security for the performance of the obligations of the
Corporation in this Section 6.7, the Trustee shall have a lien
prior to the Securities on all money or property held or collected
by the Trustee, except that held in trust to pay the principal of
or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any
predecessor Trustee, provided that the negligence or bad faith of
any Trustee shall not be attributable to any other Trustee.
The Corporation's payment obligations pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When
the Trustee incurs expenses after the occurrence of a default
specified in Sections 5.1(d) and 5.1(e), such expenses are intended
to constitute expenses of administration under bankruptcy law.
SECTION H. Replacement of Trustee. The Trustee may
resign at any time with respect to Securities of one or more Series
by so notifying the Corporation; provided, however, no such
resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 6.8. The Holders
of a majority in aggregate principal amount of the Outstanding
Securities of any Series may remove the Trustee with respect to
such Series at the time Outstanding by so notifying the Trustee and
the Corporation. The Corporation shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to the
Securities of one or more Series, the Corporation shall promptly
appoint, by resolution of its Board of Directors, a successor
Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Corporation.
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture with
respect to the Securities of such Series. The successor Trustee
shall mail a notice of its succession to Securityholders so
affected. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 6.7.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Corporation or the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding may
petition any court of competent jurisdiction for the appointment of
a successor Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor
Trustee.
SECTION I. Successor Trustee by Merger. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets to,
another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.
SECTION J. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA Section
310(a)(1) and Section 310(a)(5). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee
shall comply with TIA Section 310(b).
SECTION K. Preferential Collection of Claims Against
Corporation. The Trustee shall comply with TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION A. Evidence of Action Taken by
Securityholders.
1.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
Corporation, if made in the manner provided in this Article.
0.Xx the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register.
SECTION B. Proof of Execution of Instruments.
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 accordance
with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the
Trustee.
SECTION C. Holders to Be Treated as Owners. The
Corporation, the Trustee and any agent of the Corporation 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 Section 2.7)
interest on such Security and for all other purposes; and neither
the Corporation nor the Trustee nor any agent of the Corporation or
the Trustee shall be affected by any notice to the contrary. The
Corporation, the Trustee and any agent of the Corporation or the
Trustee may treat the Holder of any Unregistered Security and the
Holder of any Coupon as the absolute owner of such Unregistered
Security or Coupon (whether or not such Unregistered Security or
Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and
neither the Corporation, the Trustee, nor any agent of the
Corporation or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such Person, or upon
his order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Unregistered Security or Coupon.
SECTION D. Securities Owned by Corporation 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 Corporation or
any other obligor on the Securities with respect to which such
determination is being made or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Corporation 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 Corporation or any other
obligor upon the Securities or any Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Corporation or any other obligor on the
Securities.
SECTION E. 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, revoke such action so far as concerns such Security.
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 therefor,
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 Corporation, the Trustee and the Holders of all the Securities
affected by such action.
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION A. Supplemental Indentures Without Consent of
Securityholders. The Corporation, when authorized by a resolution
of its Board of Directors, and the Trustee for the Securities of
any and all Series 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 as in force at the
date of the execution thereof), in form satisfactory to such
Trustee, for one or more of the following purposes:
0.xx convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property
or assets;
0.xx evidence the succession of another corporation to the
Corporation, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of
the Corporation pursuant to Article IX;
0.xx add to the covenants of the Corporation such further covenants,
restrictions, conditions or provisions for the protection of
the Holders of Securities of any or all Series or of Coupons
and, if such additional covenants are to be for the benefit of
less than all the Series of Securities or Coupons stating that
such covenants are being added solely for the benefit of such
Series;
0.xx 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 such other
provisions in regard to matters or questions arising under
this Indenture or under any supplemental indenture as the
Board of Directors may deem necessary or desirable and which
shall not materially and adversely affect the interests of the
Holders of the Securities or Coupons;
0.xx establish the form or terms of Securities of any Series or of the
Coupons appertaining to such Securities as permitted by
Sections 2.1 and 2.3;
0.xx 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 the one Trustee, pursuant. to the requirements of Section
6.8; or
0.xx change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective
only when there is no Outstanding Security of any Series
created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision.
The Trustee is hereby authorized to join with the
Corporation 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 may be executed without the consent of the Holders
of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 8.2.
SECTION B. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article VII) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture
(voting as one class), the Corporation, when authorized by a
resolution of its Board of Directors, and the Trustee for such
Series of Securities 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 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 each such Series or of the Coupons appertaining to such
Securities; provided, however, that no such supplemental indenture
shall (a) extend the Stated Maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate
or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or make the principal thereof
(including any amount in respect of original issue discount), or
interest thereon payable in any coin or currency other than that
provided in the Securities and Coupons or in accordance with the
terms thereof, or reduce the amount of the principal of the
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 thereof provable in bankruptcy pursuant to Section 5.2,
or alter the provisions of Section 11.11, or impair or affect the
right of any Securityholder to institute suit for payment thereof
or, if the Securities provide therefor, any right of repayment at
the option of the Securityholder 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.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
Series of Securities, or which modifies the rights of Holders of
Securities of such Series, or of Coupons appertaining to such
Securities, 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 or of the Coupons appertaining to
such Securities.
Upon the request of the Corporation, accompanied by a
copy of a resolution of the Board of Directors certified by the
secretary or an assistant secretary of the Corporation authorizing
the execution of any such supplemental indenture, and upon the
filing with the Trustee for such Series of Securities of evidence
of the consent of Securityholders as aforesaid and other documents,
if any, required by Section 7.1, the Trustee for such Series of
Securities shall join with the Corporation in the execution of such
supplemental indenture unless such supplemental indenture affects
such Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case such 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 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 Corporation and the
Trustee of any supplemental indenture pursuant to the provisions of
this Section, the Corporation shall give notice thereof (i) to the
Holders of then Outstanding Registered 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, (ii) if any Unregistered Securities of a Series
affected thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee, by mailing
a notice thereof by first-class mail to such Holders at such
addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a Series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice
thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.5, at least once
in an Authorized Newspaper in Luxembourg), and in each case such
notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Corporation 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 C. Effect of Supplemental Indenture. Every
supplemental indenture executed pursuant to this Article VIII shall
conform to the requirements of the Trust Indenture Act. 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 Corporation 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 D. Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article VIII complies with the applicable
provisions of this Indenture.
SECTION E. 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 VIII may bear, upon the
direction of the Corporation, a notation in form satisfactory to
the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Corporation or
the Trustee shall so determine, new Securities of any Series so
modified as to-conform, in the opinion of the Trustee and the
Corporation, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Corporation,
authenticated by the Trustee and delivered in exchange for the
Securities of such Series then Outstanding.
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION A. Corporation May Consolidate, etc., on
Certain Terms. The Corporation may sell, convey or lease all or
substantially all of its assets to any Person, or consolidate with
or merge into, any other corporation, provided that in any such
case, (i) either the Corporation shall be the continuing
corporation, or the successor corporation or Person which acquires
by sale or conveyance all or substantially all of the assets of the
Corporation, shall be a corporation or other entity organized and
validly existing under the laws of the United States of America or
any State thereof or the District of Columbia and shall expressly
assume the due and punctual payment of the principal of and
interest on all the Securities according to their tenor, and the
due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed or observed by the
Corporation by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation or
entity, and (ii) immediately after such merger or consolidation, or
such sale, conveyance or lease, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing.
SECTION B. Successor Corporation Substituted. In
case of any such consolidation, merger, sale, lease or conveyance,
and following such an assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the
Corporation, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Corporation prior to
such succession any or all of the Securities issuable hereunder
which, together with any Coupons appertaining thereto, theretofore
shall not have been signed by the Corporation and delivered to the
Trustee; and, upon the order of such successor corporation instead
of the Corporation and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall make available for delivery any Securities,
together with any Coupons appertaining thereto, which previously
shall have been signed and delivered by the officers of the
Corporation to the Trustee for authentication, and any Securities,
together with any Coupons appertaining thereto, which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities
so issued, together with any Coupons appertaining thereto, shall in
all respects have the same legal rank and benefit under this
Indenture as the Securities and Coupons theretofore or thereafter
issued in accordance with the terms of this Indenture as though all
of such Securities and Coupons had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in
substance) may be made in the Securities and Coupons thereafter to
be issued as may be appropriate.
In the event of any such sale or conveyance (other than
conveyance by way of lease) the Corporation (or any successor
corporation which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations
and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION C. Opinion of Counsel to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Opinion of Counsel, prepared in accordance with Section
11.5, as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such
liquidation or dissolution, complies with the applicable provisions
of this Indenture.
ARTICLE X.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION A. Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Corporation shall have paid
or caused to be paid the principal of and interest on all the
Securities of any Series Outstanding hereunder and all unmatured
Coupons appertaining thereto (other than Securities of such Series
and Coupons appertaining thereto 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 Corporation shall have delivered to the Trustee for
cancellation all Securities of any Series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any
Securities of such Series and Coupons appertaining thereto which
have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) or (c) in the case of
any Series of Securities where the exact amount (including the
currency of payment) of principal of and interest due on such
Securities can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such
Series and all unmatured Coupons appertaining thereto 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 Corporation shall have
irrevocably deposited or caused to be deposited with the Trustee as
trust funds the entire amount (other than moneys repaid by the
Trustee or any Paying Agent to the Corporation in accordance with
Section 10.4) or Government Obligations maturing as to principal
and interest in such amounts and at such times as will ensure the
availability of cash sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A)
the principal and interest on all Securities of such Series and
Coupons appertaining thereto on each date that such principal or
interest 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 the Indenture and the Securities of
such Series, and if, in any such case, the Corporation shall also
pay or cause to be paid all other sums payable hereunder by the
Corporation with respect to Securities of such Series, then this
Indenture shall cease to be of further effect with respect to
Securities of such Series (except as to (i) rights of registration
of transfer and exchange, and the Corporation's right of optional
redemption (provided the Corporation provides sufficient funds to
effect such optional redemption), (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders to receive payments of principal thereof and
interest thereon upon the original stated due dates therefor (but
not upon acceleration) and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, (iv) the rights,
obligations and immunities of the Trustee hereunder, and (v) the
rights of the Securityholders of such Series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of
them), and, subject to Section 10.5, the Trustee, on demand of the
Corporation accompanied by an Officers' Certificate and an Opinion
of Counsel and at the cost and expense of the Corporation, shall
execute proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such Series; provided,
that the rights of Holders of the Securities and Coupons to receive
amounts in respect of principal of and interest on the Securities
and Coupons held by them shall not be delayed longer than required
by then applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. The Corporation
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 and the
Securities of such Series.
(B) a. In addition to the provisions of Section 10.1(A),
the Corporation may, at its option by or pursuant to, or otherwise
in a manner or by such Persons as may be authorized pursuant to,
one or more resolutions duly adopted by the Board of Directors, at
any time with respect to the Securities of any Series, elect to
have defeasance under subsection (ii) of this Section 10.1(B) be
applied to the Outstanding Securities of such Series provided that
provision therefor is made for such application pursuant to Section
2.3 and the applicable conditions thereto as set forth in this
Section 10.1(B) have been satisfied.
b. Upon the Corporation's exercise of the option
referenced in Section 10.1(B)(i), the Corporation may terminate its
obligations under the Outstanding Securities of any Series and this
Indenture with respect to such Series on the date the conditions
set forth below are satisfied (hereinafter, "defeasance"). For
this purpose, such defeasance means that the Corporation shall be
deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense and request of the Corporation, shall
execute proper instruments acknowledging the same), except for the
following: (1) the rights of Holders of Outstanding Securities of
such Series to receive payments in respect of the principal of and
interest on such Securities when such payments are due, (2) the
Corporation's obligations with respect to such Securities under
Sections 2.8, 2.9, 2.11, 3.2, 6.7, 10.4 and 10.5, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, and
(4) this Section 10.1(B).
c. The following shall be the conditions to the
application of Section 10.1(B)(ii) to the Outstanding Securities of
such Series:
1.The Corporation shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.10 who shall agree to
comply with the provisions of this Section and Section
10.1(B) applicable to it) under the terms of an
irrevocable trust agreement, as trust funds in trust
solely for the purpose of making the following payments,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of Securities of
such Series, (i) cash in the currency or currency unit
required, or (ii) Government Obligations maturing as to
principal and interest in such amounts (payable in the
currency in which the Securities of such Series are
payable) and at such times as are sufficient, to pay the
principal of and interest on the Outstanding Securities
of such Series to Maturity or redemption, as the case may
be, or (iii) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and
discharge, (x) the principal of and each installment of
principal of and interest, if any, on the Outstanding
Securities of such Series and Coupons appertaining
thereto on the Stated Maturity of such principal or
installment of principal or interest, if any, and (y) any
mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such Series
on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such
Securities. Such irrevocable trust agreement shall
include, among other things, (i) provision for the
payments referenced in clauses (x) and (y) of the
immediately preceding sentence, (ii) the payment of the
reasonable expenses of the Trustee incurred or to be
incurred in connection with carrying out such trust
provisions, (iii) rights of registration, transfer,
substitution and exchange of Securities of such Series in
accordance with the terms stated in this Indenture and
(iv) continuation of the rights and obligations and
immunities of the Trustee as against the Holders of
Securities of such Series as stated in this Indenture.
0.Xx Event of Default or event which with notice or lapse of time or
both would constitute an Event of Default with respect to the
Securities of such Series shall have occurred and be
continuing on the date of such deposit or shall occur as
a result of such deposit or, insofar as Sections 5.1(d)
and 5.1(e) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period).
3.Such deposit or defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the
Corporation is a party or by which it is bound.
4.The Corporation shall have delivered to the Trustee an Opinion of
Counsel of recognized national standing to the effect
that Securityholders of such Series will not recognize
income, gain or loss for Federal income tax purposes as
a result of such deposit and discharge and will be
subject to Federal income tax on the same amounts and in
the same manner and at the same time as would have been
the case if such deposit and defeasance had not occurred.
5.The Corporation shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all
conditions precedent provided for herein relating to the
deposit and defeasance contemplated by this Section
10.1(B) have been complied with.
SECTION B. Application by Trustee of Funds Deposited
for Payment of Securities. Subject to Section 10.4, all moneys
deposited with the Trustee pursuant to Section 10.1 shall be held
in trust and applied by it to the payment, either directly or
through any Paying Agent (including the Corporation acting as its
own Paying Agent), to the Holders of the particular Securities of
such Series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal
and interest; but such money need not be segregated from other
funds except to the extent required by law.
SECTION C. 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 (other than the Corporation) under the provisions
of this Indenture with respect to such Series of Securities shall,
upon demand of the Corporation, be paid to the Trustee and
thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
SECTION D. Return of Unclaimed Moneys Held by Trustee
and Paying Agent. Any moneys deposited with or paid to the Trustee
or any Paying Agent (including the Corporation acting as its own
Paying Agent) for the payment of the principal of or interest on
any Security of any Series or Coupons attached thereto and not
applied but remaining unclaimed for two years after the date upon
which such principal or interest shall have become due and payable,
shall, upon the written request of the Corporation, promptly be
repaid to the Corporation by the Trustee for such Series or such
Paying Agent (except that with respect to any amounts then held by
the Corporation in trust as its own Paying Agent no such request
need be given and at such time the Corporation shall be discharged
from its duty to hold such moneys in trust as Paying Agent), and
the Holder of the Securities of such Series and of any Coupons
appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Corporation 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; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment with
respect to moneys deposited with it for any payment (a) in respect
of Registered Securities of any Series, shall at the expense of the
Corporation, mail by first-class mail to Holders of such Securities
at their addresses as they shall appear on the Security Register,
and (b) in respect of Unregistered Securities of any Series, shall
at the expense of the Corporation cause to be published once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and once in an Authorized Newspaper in London (and if required
by Section 3.5, once in an Authorized Newspaper in Luxembourg),
notice, that such moneys remain and that, after a date specified
therein, which shall not be less than thirty days from the date of
such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Corporation. Anything in this
Article X to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon the
written request of the Corporation any money or Government
Obligations held by it as provided in Section 10.1(B)(iii) which,
in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect such defeasance in
accordance with the provisions of this Indenture.
SECTION E. Reinstatement of Corporation's
Obligations. If the Trustee is unable to apply any funds or
Government Obligations in accordance with Section 10.1 by reason of
any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Corporation's obligations under
this Indenture and the Securities of any Series for which such
application is prohibited shall be revived and reinstated as if no
deposit had occurred pursuant to Section 10.1 until such time as
the Trustee is permitted to apply all such funds or Government
Obligations in accordance with Section 10.1; provided, however,
that if the Corporation has made any payment of interest on or
principal of any of such Securities because of the reinstatement of
its obligations, the Corporation shall be subrogated to the rights
of the Securityholders of such Securities to receive such payment
from the funds or Government Obligations held by the Trustee.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION A. Incorporators, Stockholders, Officers and
Directors of Corporation Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security, in any Coupon 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 Corporation or of
any successor, either directly or through the Corporation 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
and the Coupons appertaining thereto by the Holders thereof and as
part of the consideration for the issue of the Securities and the
Coupons appertaining thereto.
SECTION B. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this Indenture
or in the Securities or the Coupons appertaining thereto, expressed
or implied, shall give or be construed to give to any Person, firm
or corporation, other than the parties hereto, any Paying Agent and
their successors hereunder and the Holders of the Securities or
Coupons 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 or Coupons.
SECTION C. Successors and Assigns of Corporation
Bound by Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the
Corporation shall bind its successors and assigns, whether so
expressed or not.
SECTION D. Notices and Demands on Corporation,
Trustee and Securityholders. 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 or Coupons to
or on the Corporation 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
Corporation is filed by the Corporation with the Trustee) to USG
Corporation, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 60606-
4678, Attention: ______________. Any notice, direction, request or
demand by the Corporation or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders of
Registered Securities of any event such notice shall be
sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed by first-class mail, postage prepaid to such
Holders as their names and addresses appear in the Security
Register within the time prescribed. 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 any case where
notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been
duly given.
In case, by reason of the suspension of or irregularities
in regular mail service, it shall be impracticable to mail notice
to the Corporation and Securityholders 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 acceptable to
the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION E. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any application
or demand by the Corporation to the Trustee to take any action
under any of the provisions of this Indenture, the Corporation
shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except
that in the case of any such application or 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 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 and the definitions
herein relating thereto, (b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c)
a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether
or not, in the opinion of such Person, such condition or covenant
has been complied with.
Any certificate, statement or opinion of an officer of
the Corporation may be based, insofar as it relates to legal
matters, upon a certificate or opinion of or representations by
counsel, unless such officer knows 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 or
information with respect to which is in the possession of the
Corporation, upon the certificate, statement or opinion of or
representations by an officer or officers of the Corporation,
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 Corporation 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 Corporation, 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, 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 F. Payments Due on Saturdays, Sundays and
Holidays. Unless otherwise specified in a Security, if the date of
Maturity of interest on or principal of the Securities of any
Series or any Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not be
a Business Day, then payment of interest 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, and no interest shall
accrue for the period after such date.
SECTION G. Conflict of Any Provision of Indenture
with Trust Indenture Act. 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 by the Trust
Indenture Act, such required provision shall control.
SECTION H. New York Law to Govern. This Indenture
and each Security and any Coupon appertaining thereto shall be
deemed to be a contract under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws
of such State.
SECTION I. 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 J. Effect of Headings; Gender. The Article
and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof. The
use of the masculine, feminine or neuter gender herein shall not
limit in any way the applicability of any term or provision hereof.
SECTION K. Securities in a Foreign Currency or in
ECU. Unless otherwise specified in an Officers' Certificate
delivered pursuant to Section 2.3 of this Indenture with respect to
a particular Series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all
Series or all Series affected by a particular action at the time
Outstanding and, at such time, there are Outstanding Securities of
any Series which are denominated in a coin or currency other than
Dollars (including ECUs), then the principal amount of Securities
of such Series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that
could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, "Market Exchange Rate" shall mean
the noon Dollar buying rate for that currency for cable transfers
quoted in The City of New York as certified for customs purposes by
the Federal Reserve Bank of New York; provided, however, in the
case of ECUs, "Market Exchange Rate" shall mean the rate of
exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of
the European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee
shall use, in its sole discretion and without liability on its
part, such quotation of the Federal Reserve Bank of New York or, in
the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available date, or quotations or, in the case
of ECUs, rates of exchange from one or more major banks in The City
of New York or in the country of issue of the currency in question,
which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a Series denominated in a currency other
than Dollars in connection with any action taken by holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding
the Market Exchange Rate or any alternative determination provided
for in the preceding paragraph shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Corporation and all
Holders.
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION A. Applicability of Article. The provisions
of this Article shall be applicable to the Securities of any Series
which are redeemable before their final 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 B. Election to Redeem; Notice of Redemption;
Partial Redemptions. The election of the Corporation to redeem any
Securities shall be evidenced by, or pursuant to, a resolution of
the Board of Directors. Notice of redemption to the Holders of
Registered Securities of any Series required to be redeemed or to
be redeemed as a whole or in part at the option of the Corporation
shall be given by giving notice of such redemption as provided in
Section 11.4, 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. Notice of redemption to the Holders of Unregistered
Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee, 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 at such addresses as
were so furnished to the Trustee (and, in the case of any such
notice given by the Corporation, the Trustee shall make such
information available to the Corporation for such purpose). Notice
of redemption to all other Holders of Unregistered Securities shall
be published in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.5, in an Authorized Newspaper
in Luxembourg), in each case, once in each of three successive
calendar weeks, the first publication to be not less than thirty
nor more than sixty days prior to the date fixed for redemption.
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.
The notice of redemption to each such Holder shall
specify the date fixed for redemption, the "CUSIP" number or
numbers for such Securities, the redemption price, the Place or
Places of Payment, that payment will be made upon presentation and
surrender of such Securities, and, in the case of Securities with
Coupons attached thereto, of all Coupons appertaining thereto
maturing after the date fixed for redemption, that such redemption
is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for
redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all of the Securities
of any Series are to be redeemed, the notice of redemption shall
specify the numbers of the Securities of such Series to be
redeemed. In case any Security of a Series is to be redeemed in
part, 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 Corporation shall be given by the
Corporation or, at the Corporation's request, by the Trustee in the
name and at the expense of the Corporation. If such notice is to
be given by the Trustee, the Corporation shall provide notice of
such redemption to the Trustee at least 45 days prior to the date
fixed for redemption (unless a shorter notice shall be satisfactory
to the Trustee). If such notice is given by the Corporation, the
Corporation shall provide a copy of such notice given to the
Holders of such redemption to the Trustee at least 2 days prior to
the date such notice is given to such Holders, but in. any event at
least 15 days prior to the date fixed for redemption (unless a
shorter notice shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not
later than the redemption date specified in the notice of
redemption given as provided in this Section, the Corporation will
have on deposit with the Trustee or with one or more Paying Agents
(or, if the Corporation is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 3.3) in
funds available on such date, 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 to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed
at the election of the Corporation, the Corporation will deliver to
the Trustee at least 60 days prior to the date fixed for redemption
an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
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 in
whole or in part and the Trustee shall promptly notify the
Corporation 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. However, if less than all the Securities of any Series
with differing issue dates, interest rates and stated maturities
are to be redeemed, the Corporation in its sole discretion shall
select the particular Securities to be redeemed and shall notify
the Trustee in writing thereof at least 45 days prior to the
relevant redemption date. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for
Securities of such Series or any multiple thereof. 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 If any Security
selected for partial redemption is surrendered for conversion after
such selection, the converted portion os such Security shall be
deemed (so far as may be) to be the portion selected for
redemption.
SECTION C. Payment of Securities Called for Redemp-
tion. 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 stated in
such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and after
said date (unless the Corporation shall default in the payment of
such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the
unmatured Coupons, if any, appertaining thereto shall be void, and,
except as provided in Sections 6.1 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled
to any 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 specified in
said notice, together with all Coupons, if any, appertaining
thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and
redeemed by the Corporation at the applicable redemption price,
together with interest accrued thereon to the date fixed for
redemption; provided that, payment of interest becoming due on or
prior to the date fixed for redemption shall be payable in the case
of Securities with Coupons attached thereto, to the Holders of
Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject
to the terms and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal 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 Corporation shall execute and the Trustee shall authenticate
and make available for delivery to or on the order of the Holder
thereof, at the expense of the Corporation, a new Security or
Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION D. 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 a written
statement signed by an authorized officer of the Corporation and
delivered to the Trustee at least 30 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 Corporation or (b) an entity specifically identified in such
written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Corporation.
SECTION E. Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of Securities of any Series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such
minimum amount provided for by the terms of 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 Corporation 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 Corporation or receive credit for Securities of such
Series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Corporation 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 sed this
Indenture to be duly executed, and their respective corporate seals
to be hereto affixed and attested, all as of the day and year first
above written.
USG CORPORATION
By:
Name:
Title:
ATTEST:
By: _______________________
Name:
Title:
[CORPORATE SEAL]
__________________________,
as Trustee
By:
Name:
Title:
ATTEST:
By: ______________________
Name:_____________________
Title:____________________
[CORPORATE SEAL]
