XXXXX-ILLINOIS, INC.,
as Issuer
and
[ ],
as Trustee
----------------
INDENTURE
dated as of _________, 1997
----------------
CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------------- -----------------
310(a)(1)...................................... 7.10
(a)(2)...................................... 7.10
(a)(3)...................................... N.A.
(a)(4)...................................... N.A.
(a)(5)...................................... 7.10
(b)......................................... 7.08; 7.10
(c)......................................... N.A.
311(a)......................................... 7.11
(b)......................................... 7.11
(c)......................................... N.A.
312(a)......................................... 2.05
(b)......................................... 10.03
(c)......................................... 10.03
313(a)......................................... 7.06
(b)......................................... 7.06
(c)......................................... 7.06; 10.02
(d)......................................... 7.06
314(a)......................................... 4.03; 10.02
(b)......................................... N.A.
(c)(1)...................................... 10.04
(c)(2)...................................... 10.04
(c)(3)...................................... N.A.
(d)......................................... N.A.
(e)......................................... 10.05
(f)......................................... N.A.
315(a)......................................... 7.01(b)(ii)
(b)......................................... 7.05; 10.02
(c)......................................... 7.01(a)
(d)......................................... 7.01(d)
(e)......................................... 6.11
316(a)(last sentence).......................... 2.09
(a)(1)(A)................................... 6.05
(a)(1)(B)................................... 6.04
(a)(2)...................................... N.A.
(b)......................................... 6.07
(c)......................................... 2.13; 9.03
317(a)(1)...................................... 6.08
(a)(2)...................................... 6.09
(b)......................................... 2.04
318(a)......................................... 10.01
(b)......................................... N.A.
(c)......................................... 10.01
N.A. means not applicable.
--------------------------
* This Cross-Reference Table is not part of the Indenture.
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE....................................... 1
Section 1.01. Certain Definitions...................................................... 1
Section 1.02. Other Definitions........................................................ 4
Section 1.03. Incorporation by Reference of Trust Indenture Act........................ 4
Section 1.04. Rules of Construction.................................................... 4
ARTICLE 2 THE SECURITIES................................................................... 5
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating................. 5
Section 2.02. Execution and Authentication............................................. 7
Section 2.03. Registrar and Paying Agent............................................... 7
Section 2.04. Paying Agent to Hold Money in Trust...................................... 7
Section 2.05. Securityholder Lists..................................................... 8
Section 2.06. Transfer and Exchange.................................................... 8
Section 2.07. Replacement Securities................................................... 9
Section 2.08. Outstanding Securities................................................... 9
Section 2.09. Treasury Securities...................................................... 10
Section 2.10. Temporary Securities..................................................... 10
Section 2.11. Cancellation............................................................. 10
Section 2.12. Defaulted Interest....................................................... 10
Section 2.13. Special Record Dates..................................................... 11
ARTICLE 3 REDEMPTION....................................................................... 11
Section 3.01. Notices to Trustee....................................................... 11
Section 3.02. Selection of Securities to Be Redeemed................................... 12
Section 3.03. Notice of Redemption..................................................... 12
Section 3.04. Effect of Notice of Redemption........................................... 13
Section 3.05. Deposit of Redemption Price.............................................. 13
Section 3.06. Securities Redeemed in Part.............................................. 13
ARTICLE 4 COVENANTS........................................................................ 13
Section 4.01. Payment of Securities.................................................... 13
Section 4.02. Maintenance of Office or Agency.......................................... 14
Section 4.03. Commission Reports....................................................... 14
Section 4.04. Compliance Certificate................................................... 15
Section 4.05. Taxes.................................................................... 15
Section 4.06. Stay, Extension and Usury Laws........................................... 15
Section 4.07. Corporate Existence...................................................... 15
ARTICLE 5 SUCCESSORS....................................................................... 16
Section 5.01. When Company May Merge, etc.............................................. 16
Section 5.02. Successor Corporation Substituted........................................ 16
ARTICLE 6 DEFAULTS AND REMEDIES............................................................ 17
Section 6.01. Events of Default........................................................ 17
Section 6.02. Acceleration............................................................. 18
S-2
PAGE
----
Section 6.03. Other Remedies.......................................................... 18
Section 6.04. Waiver of Past Defaults................................................. 19
Section 6.05. Control by Majority..................................................... 19
Section 6.06. Limitation on Suits..................................................... 19
Section 6.07. Rights of Holders to Receive Payment.................................... 20
Section 6.08. Collection Suit by Trustee.............................................. 20
Section 6.09. Trustee May File Proofs of Claim........................................ 20
Section 6.10. Priorities.............................................................. 20
Section 6.11. Undertaking for Costs................................................... 21
ARTICLE 7 TRUSTEE.......................................................................... 21
Section 7.01. Duties of Trustee....................................................... 21
Section 7.02. Rights of Trustee....................................................... 22
Section 7.03. Individual Rights of Trustee............................................ 23
Section 7.04. Trustee's Disclaimer.................................................... 23
Section 7.05. Notice of Defaults...................................................... 23
Section 7.06. Reports by Trustee to Holders........................................... 23
Section 7.07. Compensation and Indemnity.............................................. 24
Section 7.08. Replacement of Trustee.................................................. 24
Section 7.09. Successor Trustee by Xxxxxx, etc........................................ 26
Section 7.10. Eligibility; Disqualification........................................... 26
Section 7.11. Preferential Collection of Claims Against
Company................................................................ 26
ARTICLE 8 SATISFACTION AND DISCHARGE; DEFEASANCE........................................... 26
Section 8.01. Satisfaction and Discharge of Indenture .................................26
Section 8.02. Application of Trust Funds; Indemnification ............................ 28
Section 8.03. Legal Defeasance of Securities of any Series............................ 28
Section 8.04. Covenant Defeasance..................................................... 30
Section 8.05. Repayment to Company.................................................... 31
ARTICLE 9 SUPPLEMENTS, AMENDMENTS AND WAIVERS.............................................. 31
Section 9.01. Without Consent of Holders.............................................. 31
Section 9.02. With Consent of Holders................................................. 32
Section 9.03. Revocation and Effect of Consents....................................... 33
Section 9.04. Notation on or Exchange of Securities................................... 33
Section 9.05. Trustee to Sign Amendments, etc......................................... 34
ARTICLE 10 MISCELLANEOUS................................................................... 34
Section 10.01. Indenture Subject to Trust Indenture Act................................ 34
Section 10.02. Notices................................................................. 34
Section 10.03. Communication By Holders With Other Holders............................. 35
Section 10.04. Certificate and Opinion as to Conditions
Precedent.............................................................. 35
Section 10.05. Statements Required in Certificate or Opinion........................... 35
Section 10.06. Rules by Trustee and Agents............................................. 36
Section 10.07. Legal Holidays.......................................................... 36
Section 10.08. No Recourse Against Others.............................................. 36
Section 10.09. Counterparts............................................................ 36
S-3
PAGE
----
Section 10.10. Governing Law........................................................... 36
Section 10.11. Severability............................................................ 36
Section 10.12. Effect of Headings, Table of Contents, etc.............................. 37
Section 10.13. Successors and Assigns.................................................. 37
Section 10.14. No Interpretation of Other Agreements................................... 37
S-4
INDENTURE dated as of _____________, 199__ between Xxxxx-Illinois, Inc. ,
a Delaware corporation (the "Company"), and ____________________________, a
______________________, as Trustee (the "Trustee").
[The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness to be issued in one or more series
(the "Securities"), as herein provided, up to such principal amount as may
from time to time be authorized in or pursuant to one or more resolutions of
the Board of Directors or by supplemental indenture.]
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of each series of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Certain Definitions.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
voting stock, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors or pursuant to authorization by the Board of
Directors and to be in full force and effect on the date of
such certification (and delivered to the Trustee, if appropriate).
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such above until a successor replaces
it pursuant to this Indenture and thereafter means the successor.
"Company Order" means a written order signed in the name of the Company
by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board, a President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession, which are applicable from time to time.
"Global Security" shall mean a Security issued to evidence all or a part
of any series of Securities that is executed by the Company and authenticated
and delivered by the Trustee to a depositary or pursuant to such depositary's
instructions, all in accordance with this Indenture and pursuant to Section
2.01, which shall be registered as to principal and interest
in the name of such depositary or its nominee.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after maturity, means interest payable
after maturity.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial Officer, any
Vice-President, the Treasurer, the Controller, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one
of whom must be the Chief Executive Officer, the President, the Chief
Financial Officer, the Treasurer or principal accounting officer of the
Company.
2
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides that
an amount less than its principal amount is due and payable upon acceleration
after an Event of Default.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"principal" of a Security means the principal amount due on the stated
maturity of the Security plus the premium, if any, on the Security.
"Securities" means the Securities authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Subsidiary" means any corporation, partnership or limited liability
company of which the Company, or the Company and one or more Subsidiaries, or
any one or more Subsidiaries, directly or indirectly own (i) in the case of a
corporation, voting securities entitling the holders thereof to elect a
majority of the directors, either at all times or so long as there is no
default or contingency which permits the holders of any other class of
securities to vote for the election of one or more directors, (ii) in the
case of a partnership, at least a majority of the general partnership
interests and at least a majority of total outstanding partnership interests
or (iii) in the case of a limited liability company, at least a majority of
the membership interests.
"TIA" means the Trust Indenture Act of 1939, as amended from time to
time, and as in effect on the date of execution of this Indenture; provided,
however, that in the event the TIA is amended after such date, "TIA" means,
to the extent required by such amendment, the Trust Indenture Act, as so
amended.
"Trustee" means the party named as such above until a successor becomes
such pursuant to this Indenture and thereafter means or includes each party
who is then a trustee hereunder, and if at any time there is more than one
such party, "Trustee" as used with respect to the Securities of any series
means the Trustee with respect to Securities of that series. If Trustees
with respect to different series of Securities are trustees under this
Indenture, nothing herein shall constitute the Trustees co-trustees of the
same trust, and each Trustee shall be the trustee of a trust separate and
apart from any trust administered by any other Trustee with respect to a
different series of Securities.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States
of America, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by The United States of America which are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation evidenced by such depository receipt.
3
Section 1.02. Other Definitions.
Term Defined in Section
"Bankruptcy Law"................ 6.01
"Custodian"..................... 6.01
"Event of Default".............. 6.01
"Legal Holiday"................. 10.07
"Paying Agent".................. 2.03
"redemption price".............. 3.03
"Registrar"..................... 2.03
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Securities means the Company and any successor
obligor on the Securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the
TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular; and
(v) provisions apply to successive events and transactions.
4
ARTICLE 2
THE SECURITIES
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be
issued in one or more series. There shall be established in or pursuant to a
Board Resolution or an Officer's Certificate pursuant to authority granted
under a Board Resolution or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of Securities of
the series which 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 this Article 2);
(c) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities of the Series will be
issued;
(d) the date or dates on which the principal of the Securities of the
series is payable;
(e) the rate or rates which may be fixed or variable at which the
Securities of the series shall bear interest, if any, or the manner in which
such rate or rates shall be determined, the date or dates from which such
interest shall accrue, the interest payment dates on which such interest
shall be payable and the record dates for the determination of Holders to
whom interest is payable;
(f) the place or places where the principal of and any interest on
Securities of the series shall be payable, if other than as provided
herein;
(g) the price or prices at which (if any), the period or periods
within which (if any) and the terms and conditions upon which (if other
than as provided herein) Securities of the series may be redeemed, in whole
or in part, at the option, or as an obligation, of the Company;
(h) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series, in whole or in part, pursuant to any
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period and periods within which
and the terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid pursuant to such obligation;
(i) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
5
(j) 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 thereof pursuant to Section
6.02 hereof;
(k) any addition to or change in the covenants set forth in Article 4
which applies to Securities of the series;
(l) any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(m) the Trustee for the series of Securities;
(n) whether the Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities; the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Securities, and the
depositary for such Global Security and Securities;
(o) the provisions, if any, relating to any security provided for
the Securities of the series;
(p) the form and terms of any guarantee of the Securities of the
series and the execution of this Indenture by any guarantor;
(q) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may modify or
delete any provision of this Indenture with respect to such series;
provided, however, that no such term may modify or delete any provision
hereof if imposed by the TIA; and provided, further, that any modification
or deletion of the rights, duties or immunities of the Trustee hereunder
shall have been consented to in writing by the Trustee).
All Securities of any series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution or Officer's Certificate or in any such indenture
supplemental hereto.
The principal of and any interest on the Securities shall be payable at
the office or agency of the Company designated in the form of Security for
the series (each such place herein called the "Place of Payment"); provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address
shall appear in the register of Securities referred to in Section 2.03 hereof.
Each Security shall be in one of the forms approved from time to time by
or pursuant to a Board Resolution or Officer's Certificate, or established in
one or more indentures supplemental hereto. Prior to the delivery of a
Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution or Officer's Certificate, the Company shall
deliver to the Trustee the Board Resolution or Officer's Certificate by or
pursuant to which such form of Security has been approved, which Board
Resolution or Officer's Certificate shall have attached thereto a true and
correct copy of the form of Security which has been approved by or pursuant
thereto.
6
The Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage. Each Security shall be dated the date of
its authentication.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon a
written order of the Company signed by one Officer.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or for
exchange (the "Registrar") and an office or agency where Securities of that
series may be presented for payment (a "Paying Agent"). The Registrar for a
particular series of Securities shall keep a register of the Securities of
that series and of their transfer and exchange. The Company may appoint one
or more co-Registrars and one or more additional paying agents for each
series of Securities. The term "Paying Agent" includes any additional paying
agent. The Company may change any Paying Agent, Registrar or co-Registrar
without prior notice to any Securityholder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture.
If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such. The Company or any of
its Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Company hereby appoints the Trustee the initial Registrar and Paying
Agent for each series of Securities unless another Registrar or Paying Agent,
as the case may be, is appointed prior to the time Securities of that series
are first issued.
Section 2.04. Paying Agent to Hold Money in Trust.
Whenever the Company has one or more Paying Agents it will, prior to each
due date of the principal of or interest on, any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal or
7
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent will hold in trust for the benefit of
the Securityholders of the particular series for which it is acting, or the
Trustee, all money held by the Paying Agent for the payment of principal or
interest on the Securities of such series, and that such Paying Agent will
notify the Trustee of any Default by the Company or any other obligor of the
series of Securities in making any such payment and at any time during the
continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
If the Company or an Affiliate acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Securityholders of the
particular series for which it is acting all money held by it as Paying
Agent. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon so doing, the Paying Agent (if other than
the Company or an Affiliate of the Company) shall have no further liability
for such money. Upon any bankruptcy or reorganization proceedings relating
to the Company, the Trustee shall serve as Paying Agent for the Securities.
Section 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least seven business days before each interest
payment date and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Securityholders, separately by series, relating
to such interest payment date or request, as the case may be.
Section 2.06. Transfer and Exchange.
Where Securities of a series are presented to the Registrar or a
co-Registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same series of other authorized
denominations, the Registrar shall register the transfer or make the exchange
if its requirements for such transactions are met. To permit registrations
of transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Securities at the Registrar's request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.10, 3.06 or 9.04).
The Company need not issue, and the Registrar or co-Registrar need not
register the transfer or exchange of, (i) any Security of a particular series
during a period beginning at
8
the opening of business 15 days before the day of any selection of Securities
of that series for redemption under Section 3.02 and ending at the close of
business on the day of selection, or (ii) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
of that series being redeemed in part.
Section 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of
a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of the same series if the Company's and the Trustee's
requirements are met. The Trustee or the Company may require an indemnity
bond to be furnished which is sufficient in the judgment of both to protect
the Company, the Trustee, and any Agent from any loss which any of them may
suffer if a Security is replaced. The Company may charge such Holder for its
expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall be
entitled to all the benefit of the Indenture equally and proportionately with
any and all other Securities of the same series.
Section 2.08. Outstanding Securities.
The Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
Except as set forth in Section 2.09 hereof, a Security does not cease to
be outstanding because the Company or an Affiliate holds the Security.
For each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination.
When requested by the Trustee, the Company will advise the Trustee of such
amount, showing its computations in reasonable detail.
9
Section 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of any series have concurred in any direction, waiver or consent,
Securities owned by the Company or an Affiliate shall be considered as though
they are not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
considered.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a
written order of the Company signed by one Officer of the Company.
Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Securities in exchange for
temporary Securities.
Holders of temporary securities shall be entitled to all of the benefits
of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy such Securities (subject to the record retention requirements
of the Exchange Act). Certification of the destruction of all cancelled
Securities shall be delivered to the Company. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered
to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest, in any lawful manner. It may
elect to pay such defaulted interest, plus any such interest payable on it,
to the Persons who are Holders of such Securities on which the interest is
due on a subsequent special record date. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each such Security. The Company shall fix any such record date and payment
date for such payment. At least 15 days before any such record date, the
Company shall mail to Securityholders affected thereby a notice that states
the record date, payment date, and amount of such interest to be paid.
10
Section 2.13. Special Record Dates.
(a) The Company may, but shall not be obligated to, set a record date
for the purpose of determining the identity of Holders entitled to consent to
any supplement, amendment or waiver permitted by this Indenture. If a record
date is fixed, the Holders of Securities of that series outstanding on such
record date, and no other Holders, shall be entitled to consent to such
supplement, amendment or waiver or revoke any consent previously given,
whether or not such Holders remain Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record
date unless consents from Holders of the principal amount of Securities of
that series required hereunder for such amendment or waiver to be effective
shall have also been given and not revoked within such 90-day period.
(b) The Trustee may, but shall not be obligated to, fix any day as a
record date for the purpose of determining the Holders of any series of
Securities entitled to join in the giving or making of any notice of Default,
any declaration of acceleration, any request to institute proceedings or any
other similar direction. If a record date is fixed, the Holders of
Securities of that series outstanding on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided, however, that no such action shall be effective hereunder unless
taken on or prior to the date 90 days after such record date.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Securities of any series pursuant to any
optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
The Company shall give the notice provided for in this Section at least
45 days before the redemption date (unless a shorter notice period shall be
satisfactory to the Trustee), which notice shall specify the provisions of such
Security pursuant to which the Company elects to redeem such Securities.
If the Company elects to reduce the principal amount of Securities of any
series to be redeemed pursuant to mandatory redemption provisions thereof, it
shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
11
Section 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities
of that series are listed, or, if the Securities of that series are not
listed on an exchange, on a pro rata basis or by lot. The Trustee shall make
the selection not more than 75 days and not less than 30 days before the
redemption date from Securities of that series outstanding and not previously
called for redemption. Except as otherwise provided as to any particular
series of Securities, Securities and portions thereof that the Trustee
selects shall be in amounts equal to the minimum authorized denomination for
Securities of the series to be redeemed or any integral multiple thereof.
Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption. The Trustee
shall notify the Company promptly in writing of the Securities or portions of
Securities to be called for redemption.
Section 3.03. Notice of Redemption.
Except as otherwise provided as to any particular series of Securities,
at least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption to each Holder whose Securities are
to be redeemed.
The notice shall identify the Securities of the series to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms of the
Securities of the series to be redeemed, plus accrued interest, if any, to
the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the redemption
price, interest on Securities called for redemption ceases to accrue on and
after the redemption date; and
12
(7) the CUSIP number, if any, of the Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense. The notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice of the Holder of any Security
shall not affect the validity of the proceeding for the redemption of any
other Security.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying
Agent, such Securities will be paid at the Redemption Price.
Section 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or any Affiliate is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of
all Securities called for redemption on that date other than Securities which
have previously been delivered by the Company to the Trustee for
cancellation. The Paying Agent shall return to the Company any money not
required for that purpose.
Section 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Company a new Security of the same series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay or cause to be paid the principal of and interest
on the Securities on the dates and in the manner provided in this Indenture
and the Securities. Principal and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or an Affiliate,
holds as of 10:00 a.m. Eastern Time on that date
13
immediately available funds designated for and sufficient to pay all
principal and interest then due.
To the extent lawful, the Company shall pay interest on overdue principal
and overdue installments of interest at the rate per annum borne by the
applicable series of Securities.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
corporate trust office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
Section 4.03. Commission Reports.
The Company shall deliver to the Trustee within 15 days after it files
them 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 by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act; provided, however the Company shall not be
required to deliver to the Trustee any materials for which the Company has
sought and received confidential treatment by the Commission. The Company also
shall comply with the other provisions of TIA Section 314(a).
14
Section 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that in
the course of the performance by the signers of their duties as officers of
the Company, they would normally have knowledge of any failure by the Company
to comply with all conditions, or default by the Company with respect to any
covenants, under this Indenture, and further stating whether or not they have
knowledge of any such failure or default and, if so, specifying each such
failure or default and the nature thereof. For purposes of this Section,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided for in this Indenture. The certificate need
not comply with Section 10.04.
Section 4.05. Taxes.
The Company shall pay prior to delinquency, all material taxes,
assessments, and governmental levies except as contested in good faith by
appropriate proceedings.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of every such power
as though no such law has been enacted.
Section 4.07. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of
each of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Subsidiary
and (ii) the rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve
15
any such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries, taken as a whole, and
that the loss thereof is not adverse in any material respect to the Holders.
ARTICLE 5
SUCCESSORS
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate or merge with or into (whether or not
the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets in one or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized and
existing under the laws of the United States, any state thereof or the
District of Columbia;
(2) the Person formed by or assuming any such consolidation
or merger (if other than the Company) or the Person to which such
sale, assignment, transfer, lease, conveyance or other disposition shall
have been made assumes by supplemental indenture all the obligations of the
Company under the Securities and this Indenture; and
(3) immediately prior to and after giving effect to the transaction
no Default or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee on or prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer by the Company (other
than by lease) of all or substantially all of the assets of the Company in
accordance with Section 5.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer
is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such successor corporation had been named as the Company herein. In the
event of any such transfer, the predecessor Company shall be released and
discharged from all liabilities and obligations in respect of the Securities
and the Indenture, and the predecessor Company may be dissolved, wound up or
liquidated at any time thereafter.
16
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs with respect to Securities of any particular
series if, unless in the establishing Board Resolution, Officer's Certificate
or supplemental indenture hereto, it is provided that such series shall not
have the benefit of said Event of Default:
(1) the Company defaults in the payment of interest on any Security
of that series when the same becomes due and payable and the Default
continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security of that series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities of that series,
occurs and is continuing, or the Company fails to comply with any of its
other agreements in the Securities of that series or in this Indenture with
respect to that series and the Default continues for the period and after
the notice specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property;
(D) makes a general assignment for the benefit of its creditors;
or
(E) admits in writing its inability generally to pay its debts
as the same become due.
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for all or
substantially all of its property; or
(C) orders the liquidation of the Company;
17
and the order or decree remains unstayed and in effect for 60 days.
(6) any other Event of Default provided with respect to
Securities of that series which is specified in a Board Resolution,
Officer's Certificate or supplemental indenture establishing that
series of Securities.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clause (3) above is not an Event of Default with respect
to a particular series of Securities until the Trustee or the Holders of at
least 50% in principal amount of the then outstanding Securities of that
series notify the Company of the Default and the Company does not cure the
Default within 30 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a
"Notice of Default."
Section 6.02. Acceleration.
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clauses (4) and (5) of Section 6.01)
occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 50% in principal amount of the then outstanding
Securities of that series by notice to the Company and the Trustee, may
declare the unpaid principal (or, in the case of Original Issue Discount
Securities, such lesser amount as may be provided for in such Securities) of
and any accrued interest on all the Securities of that series to be due and
payable on the Securities of that series. Upon such declaration the
principal (or such lesser amount) and interest shall be due and payable
immediately. If an Event of Default specified in clause (4) or (5) of
Section 6.01 occurs, all of such amount shall become and be immediately due
and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities of that series by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with
any judgment or decree and if all existing Events of Default with respect to
that series have been cured or waived except nonpayment of principal (or such
lesser amount) or interest that has become due solely because of the
acceleration.
Section 6.03. Other Remedies.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal or interest on the Securities of that series or to
enforce the performance of any provision of the Securities of that series or
this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
18
Section 6.04. Waiver of Past Defaults.
Subject to Section 9.02, the Holders of a majority in principal amount of
the then outstanding Securities of any series by notice to the Trustee may
waive an existing Default or Event of Default with respect to that series and
its consequences except a Default or Event of Default in the payment of the
principal (including any mandatory sinking fund or like payment) of or
interest on any Security of that series (provided, however, that the Holders
of a majority in principal amount of the outstanding Securities of any series
may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration).
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting
any proceeding for any remedy with respect to that series available to the
Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that is unduly prejudicial to the rights of another Holder of
Securities of that series, or that may involve the Trustee in personal
liability. The Trustee may take any other action which it deems proper which
is not inconsistent with any such direction.
Section 6.06. Limitation on Suits.
A Holder of Securities of any series may not pursue a remedy with respect
to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to that series;
(2) the Holders of at least 50% in principal amount of the then
outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Securities of that series do not give the
Trustee a direction inconsistent with the request.
No Holder of any series of Securities may use this Indenture to prejudice the
rights of another Holder of Securities of that series or to obtain a
preference or priority over another Holder of Securities of that series.
19
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of and interest, if any,
on the Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and is
continuing with respect to Securities of any series, the Trustee may recover
judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal (or such portion of the principal
as may be specified as due upon acceleration at that time in the terms of
that series of Securities) and interest, if any, remaining unpaid on the
Securities of that series then outstanding, together with (to the extent
lawful) interest on overdue principal and interest, and such further amount
as shall be sufficient to cover the costs and, to the extent lawful, expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 7.07.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
and the Securityholders allowed in any judicial proceedings relative to the
Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled to and empowered to collect and receive any
money or other property payable or deliverable on any such claims and to
distribute the same, and any custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee under Section
7.07. Nothing contained herein 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 or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money with respect to Securities of any
series pursuant to this Article, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all
compensation, expense and liabilities incurred, and
all advances made, by the Trustee and the costs and
expenses of collection;
20
Second: to Securityholders for amounts due and unpaid on the
Securities of such series for principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the
Securities of such series for principal and interest,
respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities of any series pursuant to this Section. The Trustee
shall notify the Company in writing reasonably in advance of any such record
date and payment date.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defense made by the
party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default known to the
Trustee:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture or the TIA and the Trustee
need perform only those duties that are specifically set forth in
this Indenture or the TIA and no others, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
21
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer of the Trustee,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) 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 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives security
and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Absent written
instruction from the Company, the Trustee shall not be required to invest any
such money. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
Subject to TIA Section 315(a) through (d):
(a) 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.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall
not be liable for any action
22
it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers, unless the Trustee's conduct constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice form the Company shall be sufficient if
signed by an Officer of the Company.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
TIA Sections 310(b) and 311.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to all Holders of Securities of that series a notice of
the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment on any such Security,
the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of such Securityholders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee with respect to any
series of Securities shall mail to Holders of Securities of that series as
provided in TIA Section 313(c) a brief report dated as of such May 15 that
complies with TIA Section 313(a) (if such report is required by TIA
Section 313(a)). The Trustee shall also comply with TIA Section 313(b).
23
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Company and filed with the Commission and each stock
exchange on which any of the Securities are listed, as required by TIA
Section 313(d). The Company shall notify the Trustee when the Securities are
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such compensation
as shall be agreed upon in writing for its services hereunder. The Company
shall reimburse the Trustee upon written request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee for any loss or liability
incurred by it, without negligence or bad faith on its part, in connection
with the administration of this Indenture and its duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee in its capacity as Trustee, except money or property
held in trust to pay principal and interest on particular Securities. Such
lien will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee with respect to one or more or
all series of Securities and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all series of
Securities by so notifying the Company in writing. The Holders of a majority
in principal amount of the then outstanding Securities of any series may
remove the Trustee as to that series by so notifying the Trustee in writing
and may appoint a successor Trustee with the Company's consent. The Company
may remove the Trustee with respect to one or more or all series of
Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
24
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed or
if a vacancy exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee for that series. Within one year
after the successor Trustee with respect to any series takes office, the
Holders of a majority in principal amount of the then outstanding Securities
of that series may appoint a successor Trustee to replace the successor
Trustee appointed by the Company. If a successor Trustee as to a particular
series does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of at least
10% in principal amount of the then outstanding Securities of that series may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10 with respect to any
series, any Holder of Securities of that series who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, 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 7.07), 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 as to
that series. The successor Trustee shall mail a notice of its succession to
the Holders of Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring trustee.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) shall contain such provisions as shall be necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary or desirable to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; provided, however, that nothing herein or in such supplemental
Indenture shall constitute
25
such Trustee co-trustees of the same trust and that each such Trustee shall
be trustee of a trust hereunder separate and apart from any trust hereunder
administered by any other such Trustee.
Upon the execution and delivery of such supplemental Indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates.
Section 7.09. Successor Trustee by Xxxxxx, etc.
If the Trustee as to any series of Securities consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any
further act shall be the successor Trustee as to that series.
Section 7.10. Eligibility; Disqualification.
Each series of Securities shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee as to any
series of Securities shall always have a combined capital and surplus of at
least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to 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 8
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the
Trustee for cancellation; or
26
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their stated maturity
within one year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company, or
(4) are deemed paid and discharged pursuant to Section
8.03, as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an amount
sufficient for the purpose of paying and discharging the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and interest to the date of such deposit (in the case of
Securities which have become due and payable on or prior to the date of such
deposit) or to the stated maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07, and, if money
shall have been deposited with the Trustee pursuant to clause (a) of this
Section or if money or obligations shall have been deposited with or received
by the Trustee pursuant to Section 8.03, the obligations of the Trustee under
Section 8.02 and Section 8.05 shall survive.
27
Section 8.02. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.05, all money deposited
with the Trustee pursuant to Section 8.01, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04
and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.03 or 8.04,
shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the
persons entitled thereto, of the principal and interest for whose payment
such money has been deposited with or received by the Trustee or to make
mandatory sinking fund payments or analogous payments as contemplated by
Sections 8.03 and 8.04.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Sections 8.03 or 8.04 or
the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any U.S. Government Obligations or money held by it
as provided in Sections 8.03 or 8.04 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess of
the amount thereof which then would have been required to be deposited for
the purpose for which such U.S. Government Obligations or money were
deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations held under this Indenture.
Section 8.03. Legal Defeasance of Securities of any Series.
Unless this Section 8.03 is otherwise specified to be inapplicable to
Securities of any series, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the outstanding Securities of any
such series on the 91st day after the date of the deposit referred to in
subparagraph (d) hereof, and the provisions of this Indenture, as it relates
to such outstanding Securities of such series, shall no longer be in effect
(and the Trustee, at the expense of the Company, shall, upon Company
Request, execute proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of
the principal of an each installment of principal of or interest on the
outstanding Securities of such series on the stated maturity of such
principal of or interest and (ii) the benefit of any mandatory sinking fund
payments applicable to the Securities of such series on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and the Securities of such series;
28
(b) the Company's obligations with respect to such Securities of such
series under Sections 2.03, 2.06 and 2.07; and
(c) the rights, powers, trust and immunities of the Trustee hereunder
and the duties of the Trustee under Section 8.02 and the duty of the
Trustee to authenticate Securities of such series issued on registration of
transfer of exchange;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities, cash in
U.S. Dollars and/or U.S. Government Obligations which through the payment
of interest and principal in respect thereof, in accordance with their
terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due
date of any payment of money, an amount in cash, sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal (including mandatory sinking fund
or analogous payments) of and interest, if any, on all the Securities of
such series on the dates such installments of interest or principal are
due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times
as would have been the case if such deposit, defeasance and discharge had
not occurred;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such series over
any other creditors of the
29
company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such
deposit constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified under
such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 8.04. Covenant Defeasance.
Unless this Section 8.04 is otherwise inapplicable to Securities of any
series, on and after the 91st day after the date of the deposit referred to
in subparagraph (a) hereof, the Company may omit to comply with any term,
provision or condition set forth under Sections 4.03, 4.04, 4.05, 4.06, 4.07
and 5.01 as well as any additional covenants contained in a supplemental
indenture hereto for a particular series of Securities or a Board Resolution
or an Officers' Certificate delivered pursuant to Section 2.01(n) (and the
failure to comply with any such provisions shall not constitute a Default or
Event of Default under Section 6.01) and the occurrence of any event
described in clause (e) of Section 6.01 shall not constitute a Default or
Event of Default hereunder, with respect to the Securities of such series,
provided that the following conditions shall have been satisfied:
(a) With reference to this Section 8.04, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.03)
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, cash in U.S. Dollars and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay principal and interest, if any, on and any
mandatory sinking fund in respect of the Securities of such series on the
dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or during the period ending on the 91st day after such date;
30
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel confirming that Holders of the Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result
of such deposit and defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred;
(e) The Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
Section 8.05. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years after the date upon which such payment shall have
become due. After payment to the Company, Securityholders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person.
ARTICLE 9
SUPPLEMENTS, AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company and the Trustee as to any series of Securities may supplement
or amend this Indenture or the Securities without notice to or the consent of
any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
31
(3) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided,
however, that any such addition, change or elimination (A) shall neither
(i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with respect
to such provision or (B) shall become effective only when there is no
outstanding Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision;
(6) to make any change that does not adversely affect in any material
respect the interests of the Securityholders of any series; or
(7) to establish additional series of Securities as permitted by
Section 2.01.
Section 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Trustee as to any series of
Securities may amend this Indenture or the Securities of that series with the
written consent of the Holders of a majority in principal amount of the then
outstanding Securities of each series affected by the amendment, with each
such series voting as a separate class. The Holders of a majority in
principal amount of the then outstanding Securities of any series may also
waive compliance in a particular instance by the Company with any provision
of this Indenture with respect to that series or the Securities of that
series; provided, however, that without the consent of each Securityholder
affected, an amendment or waiver may not:
(1) reduce the percentage of the principal amount of Securities whose
Holders must consent to an amendment or waiver;
(2) reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous provision;
(3) reduce the rate of, or change the time for payment of interest
on, any Security;
(4) reduce the principal of or change the fixed maturity of any
Security or waive a redemption payment or alter the redemption provisions
with respect thereto;
(5) make any Security payable in money other than that stated in the
Security;
(6) reduce the principal amount of Original Issue Discount
Securities payable upon acceleration of the maturity thereof;
(7) make any change in Section 6.04, 6.07 or 9.02 (this sentence); or
32
(6) waive a default in the payment of the principal of, or interest
on, any Security, except to the extent otherwise provided for in Section
6.02.
An amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
The Company will mail supplemental indentures to Holders upon request.
Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
Section 9.03. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security; provided, however, that unless a record
date shall have been established pursuant to Section 2.13(a), any such Holder
or subsequent Holder may revoke the consent as to his Security or portion of
a Security if the Trustee receives the notice of revocation before the date
on which the amendment or waiver becomes effective. An amendment or waiver
shall become effective on receipt by the Trustee of consents from the Holders
of the requisite percentage principal amount of the outstanding Securities of
any series, and thereafter shall bind every Holder of Securities of that
series.
Section 9.04. Notation on or Exchange of Securities.
If an amendment or waiver changes the terms of a Security: (a) the
Trustee may require the Holder of the Security to deliver it to the Trustee,
the Trustee may place an appropriate notation on the Security about the
changed terms and return it to the Holder and the Trustee may place an
appropriate notation on any Security thereafter authenticated; or (b) if the
Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
33
Section 9.05. Trustee to Sign Amendments, etc.
The Trustee shall receive an Opinion of Counsel stating that the
execution of any amendment or waiver proposed pursuant to this Article is
authorized or permitted by this Indenture. Subject to the preceding
sentence, the Trustee shall sign such amendment or waiver if the same does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights,
duties, liabilities or immunities under this Indenture or otherwise.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Indenture Subject to Trust Indenture Act.
This Indenture is subject to the provisions of the TIA which are required
to be part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
Section 10.02. Notices.
Any notice or communication is duly given if in writing and delivered in
person or sent by first-class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day
delivery, addressed as follows:
If to the Company:
Xxxxx-Illinois, Inc.
One SeaGate
Toledo, Ohio 43666
Attention:
If to the Trustee:
_______________________________
_______________________________
_______________________________
_______________________________
Attention:[___________________]
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt
34
acknowledged, if telecopied; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If the Company mails a notice or communication to Securityholders, it shall
mail a copy to the Trustee at the same time.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
Section 10.03. Communication By Holders With Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificate
provided for in Section 4.03) shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
35
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with; provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an
officer's certificate or certificates of public officials.
Section 10.06. Rules by Trustee and Agents.
The Trustee as to Securities of any series may make reasonable rules for
action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable
rules and set reasonable requirements for their functions.
Section 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or Toledo, Ohio, are not required to be
open. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
Section 10.08. No Recourse Against Others.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under any series of
Securities or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration of issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against
public policy.
Section 10.09. Counterparts.
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
Section 10.10. Governing Law.
The internal laws of the State of New York shall govern this Indenture
and the Securities, without regard to the conflict of laws provisions
thereof.
Section 10.11. Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
36
Section 10.12. Effect of Headings, Table of Contents, etc.
The Article and Section headings herein and the table of contents are for
convenience only and shall not affect the construction hereof.
Section 10.13. Successors and Assigns.
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 10.14. No Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
37
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Indenture as of
the date first above written.
XXXXX-ILLINOIS, INC.
By____________________________
Name:
Title:
[ ],
as Trustee
By____________________________
Name:
Title:
S-1
