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SOLUTIA INC.
TO
THE CHASE MANHATTAN BANK
AS TRUSTEE
_______________
INDENTURE
DATED AS OF ______________________
PROVIDING FOR ISSUANCE OF SENIOR
DEBT SECURITIES IN SERIES
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SOLUTIA INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ____________ __, ________
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------------- --------------
Section 310 (a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
Section 311 (a) 613
(b) 613
Section 312 (a) 701
702
(b) 702
(c) 702
Section 313 (a) 703
(b) 703
(c) 703
(d) 703
Xxxxxxx 000 (x) 000
(x)(0) 0000
(x) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 601, 603
(b) 602
703
(c) 601
(d) 601
(d)(1) 601, 603
(d)(2) 601
(d)(3) 601
(e) 514
Section 316 (a)(1)(A) 512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 507, 508
(c) 512, 513
Section 317 (a)(1) 503
(a)(2) 504
(b) 1003
Section 318 (a) 107
[FN]
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
PAGE
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PARTIES 1
Recitals of the Company 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions 1
Act 1
Affiliate; control 1
Attributable Debt 1
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Book-Entry Security 2
Business Day 2
Commission 2
Company 2
Company Request; Company Order 2
Consolidated Net Tangible Assets 2
Corporate Trust Office 2
Debt 2
Defaulted Interest 2
Depositary 2
Event of Default 2
Foreign Currency 2
Foreign Government Securities 3
Funded Debt 3
Holder 3
Indenture 3
Indexed Security 3
Industrial Development Bonds 3
Interest 3
Interest Payment Date 3
Maturity 3
Officers' Certificate 3
Opinion of Counsel 3
Original Issue Discount Security 3
Outstanding 3
Paying Agent 4
Person 4
Place of Payment 4
Predecessor Security 4
Principal Property 4
Redemption Date 5
Redemption Price 5
Regular Record Date 5
Responsible Officer 5
Restricted Subsidiary 5
Sale and Leaseback Transaction 5
Securities 5
Security Register and Security Xxxxxxxxx 0
Special Record Date 5
Stated Maturity 5
Subsidiary 5
Trustee 5
Trust Indenture Act 0
X.X. Xxxxxxxxxx Xxxxxxxxxxx 0
Xxxxxx Xxxxxx 5
Vice President 5
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Note: This table of contents shall not, for any purpose, be deemed to be a part of the
Indenture.
i
PAGE
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SECTION 102. Compliance Certificates and Opinions 6
SECTION 103. Form of Documents Delivered to Trustee 6
SECTION 104. Acts of Holders 6
SECTION 105. Notices, Etc., to Trustee and Company 7
SECTION 106. Notice to Holders; Waiver 7
SECTION 107. Conflict with Trust Indenture Act 8
SECTION 108. Effect of Headings and Table of Contents 8
SECTION 109. Successors and Assigns 8
SECTION 110. Separability Clause 8
SECTION 111. Benefits of Indenture 8
SECTION 112. Governing Law 8
SECTION 113. Legal Holidays 8
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally 8
SECTION 202. Form of Face of Security 8
SECTION 203. Form of Reverse of Security 10
SECTION 204. Additional Provisions Required in Book-Entry Security 12
SECTION 205. Form of Trustee's Certificate of Authentication 13
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series 13
SECTION 302. Denominations 15
SECTION 303. Execution, Authentication, Delivery and Dating 15
SECTION 304. Temporary Securities 16
SECTION 305. Registration, Registration of Transfer and Exchange 17
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 18
SECTION 307. Payment of Interest; Interest Rights Preserved 18
SECTION 308. Persons Deemed Owners 19
SECTION 309. Cancellation 19
SECTION 310. Computation of Interest 19
SECTION 311. CUSIP Numbers 20
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture 20
SECTION 402. Application of Trust Money; Indemnification 21
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
any Series 21
SECTION 404. Reinstatement 22
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default 22
SECTION 502. Acceleration of Maturity; Rescission and Annulment 23
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee 24
SECTION 504. Trustee May File Proofs of Claim 25
SECTION 505. Trustee May Enforce Claims Without Possession of Securities 25
SECTION 506. Application of Money Collected 25
SECTION 507. Limitation on Suits 26
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest 26
SECTION 509. Restoration of Rights and Remedies 26
SECTION 510. Rights and Remedies Cumulative 26
SECTION 511. Delay or Omission Not Waiver 27
SECTION 512. Control by Holders 27
SECTION 513. Waiver of Past Defaults 27
SECTION 514. Undertaking for Costs 27
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PAGE
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities 28
SECTION 602. Notice of Defaults 28
SECTION 603. Certain Rights of Trustee 28
SECTION 604. Not Responsible for Recitals or Issuance of Securities 29
SECTION 605. May Hold Securities and Serve as Trustee Under Other
Indentures 29
SECTION 606. Money Held in Trust 29
SECTION 607. Compensation and Reimbursement 29
SECTION 608. Disqualification; Conflicting Interests 30
SECTION 609. Corporate Trustee Required; Eligibility 30
SECTION 610. Resignation and Removal; Appointment of Successor 30
SECTION 611. Acceptance of Appointment by Successor 31
SECTION 612. Merger, Conversion, Consolidation or Succession to Business 32
SECTION 613. Preferential Collection of Claims Against Company 32
SECTION 614. Appointment of Authenticating Agent 32
SECTION 615. Investment of Certain Payments Held by the Trustee 33
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders 33
SECTION 702. Preservation of Information; Communications to Holders 34
SECTION 703. Reports by Trustee 34
SECTION 704. Reports by Company 34
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms 34
SECTION 802. Securities to be Secured in Certain Events 35
SECTION 803. Successor Substituted 35
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders 35
SECTION 902. Supplemental Indentures with Consent of Holders 36
SECTION 903. Execution of Supplemental Indentures 37
SECTION 904. Effect of Supplemental Indentures 37
SECTION 905. Conformity with Trust Indenture Act 37
SECTION 906. Reference in Securities to Supplemental Indentures 37
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest 37
SECTION 1002. Maintenance of Office or Agency 37
SECTION 1003. Money for Securities Payments to Be Held in Trust 38
SECTION 1004. Payment of Taxes and Other Claims 38
SECTION 1005. Maintenance of Principal Properties 39
SECTION 1006. Statement as to Compliance 39
SECTION 1007. Corporate Existence 39
SECTION 1008. Limitation upon Liens 39
SECTION 1009. Limitation upon Sales and Leasebacks 41
SECTION 1010. Defeasance of Certain Obligations 41
SECTION 1011. Waiver of Certain Covenants 42
iii
PAGE
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article 43
SECTION 1102. Election to Redeem; Notice to Trustee 43
SECTION 1103. Selection by Trustee of Securities to Be Redeemed 43
SECTION 1104. Notice of Redemption 43
SECTION 1105. Deposit of Redemption Price 44
SECTION 1106. Securities Payable on Redemption Date 44
SECTION 1107. Securities Redeemed in Part 44
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article 44
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities 45
SECTION 1203. Redemption of Securities for Sinking Fund 45
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
SECTION 1301. Exemption from Individual Liability 45
TESTIMONIUM 46
SIGNATURES 46
iv
INDENTURE, dated as of _______________________between SOLUTIA
INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal
office at X.X. Xxx 00000, 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000-0000, and THE CHASE MANHATTAN BANK, a corporation
organized and operating under the laws of the State of New York, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
unsubordinated unsecured debentures, notes or other evidences of
indebtedness (herein called the "Securities"), to be issued in one or
more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal
and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles, and except as otherwise expressly
provided herein, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of the computation in the United States of
America; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Debt" in respect of any Sale and Leaseback
Transaction, means, as of the time of determination, the total
obligation (discounted to present value at the rate per annum equal to
the discount rate that would be applicable to a capital lease obligation
with like term in accordance with generally accepted accounting
principles) of the lessee for rental payments (other than amounts
required to be paid on account of property taxes, maintenance, repairs,
insurance, water rates and other items that do not constitute payments
1
for property rights) during the remaining portion of the initial term of
the lease included in that Sale and Leaseback Transaction. Attributable
Debt, however, shall not include any Sale and Leaseback Transaction to
the extent that it involves Industrial Development Bonds.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Section 204 evidencing all or part of a series of Securities, issued to
the Depositary for such series or its nominee, and registered in the
name of that Depositary or that nominee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in that Place of Payment are
authorized or obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at
such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its
Chairman or Vice Chairman of the Board, its President, its Chief
Financial Officer, or a Vice Chairman or Vice President of the Company,
and also by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items)
after deducting therefrom (a) all current liabilities (excluding any
thereof constituting Funded Debt by reason of being renewable or
extendible) and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as
set forth on the most recent balance sheet of the Company and its
consolidated subsidiaries and computed in accordance with generally
accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee for
Securities of any series at which at any particular time its corporate
trust business shall be principally administered, which office of THE
CHASE MANHATTAN BANK, at the date of the execution of this Indenture is
located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-
Entry Securities, the Person designated as Depositary for that series by
the Company pursuant to Section 301, which Person shall be a clearing
agency registered under the Securities Exchange Act of 1934; and if at
any time there is more than one such Person, "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with
respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means a currency or cash issued by the
government of any country other than the United States of America or
units based on or relating to such currencies (including the Euro).
2
"Foreign Government Securities" means, with respect to Securities
of any series that are denominated in a Foreign Currency, noncallable
(i) direct obligations of the government that issued such Foreign
Currency for the payment of which obligations 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 such government, the
payment of which obligations is unconditionally guaranteed as a full
faith and credit obligation of such government.
"Funded Debt" means all indebtedness for money borrowed, or
evidenced by a bond, debenture, note or similar instrument or agreement
whether or not for money borrowed, having a maturity of more than 12
months from the date as of which the amount thereof is to be determined
or having a maturity of less than 12 months but by its terms being
renewable or extendible beyond 12 months from such date at the option of
the borrower, provided that this definition of Funded Debt shall be
deemed to include any commercial paper of the Company that is accounted
for as long-term debt on the Company's balance sheet.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument and
any such supplemental indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively. The term "Indenture" shall
also include the forms and terms of particular series of Securities
established as contemplated by Section 301.
"Indexed Security" means any Security that provides that the
principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Industrial Development Bonds" means obligations issued or
guaranteed by, or supported by the full faith and credit of, a State, a
Commonwealth, a Territory, or a possession of the United States of
America, or any political subdivision or governmental authority of any
of the foregoing, or the District of Columbia.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption
or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
or Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company including employees of the Company, and who
shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the
3
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided, that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to Section
1104 of this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities which have been defeased pursuant to
Section 403 hereof; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a protected purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given,
made or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder, or whether sufficient funds
are available for redemption or for any other purpose, and for the
purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (A) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date
upon acceleration of the Maturity thereof to such date pursuant to
Section 502, (B) the principal amount of a Security denominated in one
or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such
date in the manner provided as contemplated by Section 301 on the date
of original issuance of such Security, of the principal amount of such
Security (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of that Security
of the amount determined as provided in (A) above), (C) the principal
amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding
for such purpose shall be equal to the principal face amount of that
Indexed Security at original issuance, unless otherwise provided with
respect to that Security pursuant to Section 301,and (D) except for the
purpose of making the calculations required by section 313 of the Trust
Indenture Act, Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver
or other action, only Securities which a Responsible Officer of the
Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of, and any premium or interest on, any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of, and any
premium and interest on, the Securities of that series are payable as
specified as contemplated by Section 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Principal Property" means any building, structure or other
facility, together with the land upon which it is erected and fixtures
comprising a part thereof, used primarily for manufacturing and located
in the United States, the gross book value (without deduction of any
reserve for depreciation) of which on the date as of which the
determination is being made is an amount which exceeds 3% of
Consolidated Net Tangible Assets, other than any such building,
structure or other facility or any portion thereof or any such fixture
(together with the land upon which it is erected and fixtures comprising
a part thereof) (i) which is financed by Industrial Development Bonds or
(ii) which, in the opinion of the Board of Directors of the Company, is
not of material importance to the total business conducted by the
Company and its Restricted Subsidiaries taken as a whole.
4
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Section 301.
"Responsible Officer" when used with respect to the Trustee shall
mean any officer in the corporate trust department (or any successor
group) of the Trustee with direct responsibility for the administration
of this Indenture and shall also mean, with respect to a particular
corporate trust matter, any other officer to whom the corporate trust
matter is referred at the Corporate Trust Office because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company that
owns any Principal Property.
"Sale and Leaseback Transaction" has the meaning specified in
Section 1009.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and
payable.
"Subsidiary" means any corporation of which at least a majority of
the outstanding stock having by the terms thereof ordinary voting power
for the election of directors of that corporation (regardless of whether
or not at the time stock of any other class or classes of that
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned directly or
indirectly by the Company or by one or more Subsidiaries of the Company,
or by the Company and by one or more Subsidiaries of the Company.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed except as
provided in Section 905; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"U.S. Government Obligations" means direct obligations of the
United States for the payment of which its full faith and credit is
pledged, or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States and the
payment of which is unconditionally guaranteed by the United States.
"United States" means the United States of America excluding its
territories and possessions, but including the Commonwealth of Puerto
Rico.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
5
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the
Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an officer of
the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any
other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such
firm is independent.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture
to be given, made or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
6
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient and in accordance with
such reasonable rules as the Trustee may determine.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, by registered mail,
postage prepaid, to the Company, to the attention of the
Treasurer, addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by
the Company for this purpose.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice mailed to a Holder in the
manner prescribed herein shall be conclusively deemed to have been
received by that Holder, whether or not that Holder actually receives
such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under such Act to
be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
7
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York without
regard to conflicts of laws principles.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity or Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place
of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity or Maturity,
provided that no interest shall accrue for the intervening period.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established
by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
8
SOLUTIA INC.
NO. $
CUSIP NO.
SOLUTIA INC., a Delaware corporation (hereinafter called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of _______
Dollars on __________ [If the Security is to bear interest prior to
Maturity, insert--, and to pay interest thereon from __________ or from
the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on __________ and __________ in each
year, commencing __________ , at the rate of _ % per annum, until the
principal hereof is paid or made available for payment [If applicable
insert--, and (to the extent that the payment of such interest shall be
legally enforceable) at the rate of _ % per annum on any overdue principal
and premium]. [The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the
__________ or __________ (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert-- The principal of this Security shall not bear interest except
in the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal
and any overdue premium shall bear interest at the rate of _ % per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal or premium shall be
payable on demand. [Any such interest on any overdue principal that is
not so paid on demand shall bear interest at the rate of ___% per annum
(to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]]
Payment of the principal of (and premium, if any) and [if
applicable, insert-- any such interest on this Security will be made at
the office or agency of the Company maintained for that purpose in
__________ , in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts [if applicable, insert--; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in
the Security Register or by wire transfer to an account maintained by
the Person entitled thereto as specified in the Security Register,
provided that that Person shall have given the Trustee written wire
instructions at least five Business Days before the applicable Interest
Payment Date].
[If the Security is payable in a Foreign Currency, insert -- the
appropriate provision.]
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
9
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
SOLUTIA INC.
BY__________________________
Name:
Title:
ATTEST:
____________________________________
Name:
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of _____________ (herein
called the "Indenture"), between the Company and The Chase Manhattan
Bank, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities
and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount
to $ ].
[If applicable, insert-- The Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, such 30 days
to be counted from the date notice is mailed, [if applicable, insert--
(1) on __________ in any year commencing with the year ___ and ending
with the year ___ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [on or after _______ , 20 ], as a whole or in part, at the
election of the Company], at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [on or before
__________ , _ %, and if redeemed] during the 12-month period beginning
__________ of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
------ ------------ ------ ------------
and thereafter at a Redemption Price equal to _ % of the principal
amount, together in the case of any such redemption [if applicable,
insert-- (whether through operation of the sinking fund or otherwise)]
with accrued interest to the Redemption Date, but interest instalments
whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert-- The Securities of this series are subject
to redemption upon not less than 30 days' notice by mail, such 30 days
to be counted from the date notice is mailed, (1) on __________ in any
year commencing with the year ___ and ending with the year ___ through
___ operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after __________ ], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If
redeemed during the 12-month period beginning __________ of the years
indicated,
REDEMPTION PRICE
FOR REDEMPTION
THROUGH REDEMPTION PRICE FOR
OPERATION REDEMPTION OTHERWISE
OF THE SINKING THAN THROUGH OPERATION
YEAR FUND OF THE SINKING FUND
------ ------------------ ------------------------
10
and thereafter at a Redemption Price equal to _ % of the principal
amount, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Regular Record Dates or Special Record
Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Securities of this series as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application, directly or indirectly,
of moneys borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less than _ %
per annum.
[The sinking fund for this series provides for the redemption on
__________ in each year beginning with the year _ and ending with the
year _ of [not less than] $ _______ [("mandatory sinking fund") and not
more than $ _______ ] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required
to be made [in the inverse order in which they become due] .]]
[If the Securities do not have a sinking fund, then insert -- the
Securities do not have the benefit of any sinking fund obligations.]
[If the Security is subject to redemption, insert -- In the event
of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If the Security is not subject to redemption, insert -- The
Securities of this series are not redeemable before Stated Maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security]
[and/or] [certain restrictive covenants and Events of Default with
respect to this Security] [, in each case,] upon compliance with certain
conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of
this series may be declared due and payable in the manner and with the
effect provided in the Indenture. The Indenture provides that such
declaration may in certain events be annulled by the Holder of a
majority in principal amount of the Outstanding Securities of this
series.]
[If the Security is an Original Issue Discount Security, insert
-- If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities
of this series may be declared due and payable in the manner and with
the effect provided in the Indenture. Such amount shall be equal to --
insert formula for determining the amount. Upon payment (i) of the
amount of principal so declared due and payable and (ii) of interest on
any overdue principal (to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate. The Indenture provides that
such declaration may in certain events be annulled by the Holders of a
majority in principal amount of the Outstanding Securities of this
series.]
[If the Security is an Indexed Security, insert -- the appropriate
provision.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of
66 2/3% in principal amount of the Securities at the time Outstanding of
each series to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of
the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security.
11
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding, judicial or otherwise, with respect to the Indenture or for
the appointment of a receiver or trustee or for any other remedy
thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal
amount of the Outstanding Securities of this series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Outstanding Securities of this series a
direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice,
request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of
any payment of principal hereof or any premium or interest hereon on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
and any premium and interest on, this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of, and any premium and interest on, this Security are
payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of
like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ ___ [and any integral multiple
thereof]. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered
as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer, director or employee, as such, past,
present or future, of the Company or any successor Person, whether by
virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed
in accordance with the laws of the State of New York without regard to
the conflicts of laws principles thereof.
SECTION 204. Additional Provisions Required in Book-Entry Security.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, any Book-Entry Security issued hereunder
shall, in addition to the provisions contained in Sections 202 and 203,
and in addition to any legends required by the Depositary, bear a legend
in substantially the following form:
This Security is a Book-Entry Security within the meaning of
the Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee of a Depositary. This Security
is exchangeable for Securities registered in the name of a Person
other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and may not be
transferred except
12
as a whole by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee
of the Depositary.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By_________________________________
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution,
and, subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of
any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any
other series);
(2) any limit upon the aggregate principal amount of the
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 Sections
304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest;
(4) the date or dates on which the principal of and premium,
if any, on the Securities of the series is payable or the method
of determination;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such a
rate or rates, the date or dates from which any such interest
shall accrue, or the method by which such date or dates shall be
determined, the date on which payment of such interest shall
commence, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any such interest
payable on any Interest Payment Date;
(6) if other than the Corporate Trust Office of the Trustee,
the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices
at which, the currency or currencies (including currency units) in
which, and the other terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at
the option of the Company;
13
(8) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period,
and the duration of such extensions;
(9) the obligation, if any, of the Company to redeem or
purchase any Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and
the period or periods (or the method of determination of such a
period or periods) within which, the price or prices at which, and
the terms and conditions upon which any Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(11) 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 502 or the method by which such portion shall
be determined;
(12) if the amount of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index or pursuant to a formula or other method,
the manner in which such amounts shall be determined;
(13) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America
for any purpose, including for purposes of the definition of
"Outstanding" in Section 101;
(14) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency
units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such
election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(15) if the amount Outstanding of an Indexed Security for
purposes of the definition of "Outstanding" is to be other than
the principal face amount at original issuance, the method of
determination of such amount;
(16) whether Sections 403 or 1010 shall apply to the
Securities of such series;
(17) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Book-Entry Securities
and, in such case, the Depositary with respect to such Book-Entry
Security or Securities and the circumstances under which any Book-
Entry Security may be registered for transfer or exchange, or
authenticated and delivered, in the name of a Person other than
that Depositary or its nominee, if other than as set forth in
Section 305;
(18) any addition to or change in the Events of Default
which applies to any Securities of the series and any change in
the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable
pursuant to Section 502;
(19) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to
Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture
supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of
additional Securities of that series.
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If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of
the Officers' Certificate setting forth, or providing the manner for
determining, the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President,
its Chief Financial Officer, its Vice Chairman, or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order shall authenticate
and deliver such Securities; provided, however, that in the case of
Securities of a series that are not to be originally issued at one time,
the Trustee shall authenticate and deliver such Securities from time to
time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic
instructions from the Company or its duly authorized agents, promptly
confirmed in writing) acceptable to the Trustee as may be specified by
or pursuant to a Company Order delivered to the Trustee before the time
of the first authentication of Securities of such series. If the form or
terms of the Securities of the series have been established as permitted
by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating,
(a) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 201, that such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have been, or in the
case of Securities of a series that are not to be originally
issued at one time, will be, established by or pursuant to Board
Resolution as permitted by Section 301, that such terms have been,
or in the case of Securities of a series that are not to be
originally issued at one time, will be, established in conformity
with the provisions of this Indenture, subject, in the case of
Securities of a series that are not to be originally issued at one
time, to any conditions specified in such Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; provided that
such Opinion of Counsel need express no opinion as to whether a
court in the United States would render a money judgment in a
currency other than that of the United States.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture or otherwise in a
manner which the Trustee determines would expose it to personal
liability.
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Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company
Order and Opinion of Counsel otherwise required pursuant to such
preceding paragraph at or prior to the time of authentication of each
Security of such series if such documents, with appropriate
modifications to cover such future issuances, are delivered at or prior
to the time of authentication upon original issuance of the first
Security of such series to be issued. After the original issuance of the
first Security of such series to be issued, any separate request by the
Company that the Trustee authenticate Securities of such series for
original issuance will be deemed to be a certification by the Company
that it is in compliance with all conditions precedent provided for in
this Indenture relating to the authentication and delivery of such
Securities.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form
of one or more Book-Entry Securities, then the Company shall execute and
the Trustee shall, in accordance with this Section and the Company Order
with respect to that series, authenticate and deliver one or more
Securities in such form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Book-
Entry Security or Securities, (ii) shall be registered in the name of
the Depositary for such Book-Entry Security or Securities or the nominee
of that Depositary, (iii) shall be delivered by the Trustee to that
Depositary or pursuant to that Depositary's instruction and (iv) shall
bear the legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each
Depositary designated pursuant to Section 301 for a Book-Entry Security
must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
The Trustee shall have no responsibility to determine if the Depositary
is so registered. Each Depositary shall enter into an agreement with
the Trustee governing the respective duties and rights of that
Depositary and the Trustee with regard to Book-Entry Securities.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States
of America if the Trustee reasonably determines that such Securities
impose duties or obligations on the Trustee which the Trustee is not
able or reasonably willing to accept; provided that the Trustee, upon
the request of the Company, will resign as Trustee with respect to
Securities of any series as to which such a determination is made, prior
to the issuance of such Securities, and will comply with the request of
the Company to execute and deliver a supplemental indenture appointing a
successor Trustee pursuant to Section 611 hereof.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of
this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the
Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or
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more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized
denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register (the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities. Unless and until otherwise determined by
the Company by or pursuant to a Board Resolution, the Security Register
shall be kept at the Corporate Trust Office of the Trustee, and the
Trustee is hereby initially appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107
not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series for a period beginning
at the opening of business 15 days before the day of the mailing of a
notice of redemption of any Securities of that series selected for
redemption under Section 1103, and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange
any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in
the names of Persons other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Book-Entry
Security or if at any time such Depositary ceases to be a clearing
agency registered under the Securities Exchange Act of 1934, and the
Company does not appoint a successor Depositary within 90 days after
receipt by it of such notice or after it becomes aware of such
cessation, (ii) the Company executes and delivers to the Trustee a
Company Order that such Book-Entry Security shall be so exchangeable or
(iii) there shall have occurred and be continuing an Event of Default
with respect to the Securities. Any Book-Entry Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable
for Securities registered in such names as the Depositary shall direct.
Notwithstanding any other provision in this Indenture, unless and
until it is exchanged in whole or in part for Securities that are not in
the form of a Book-Entry Security, a Book-Entry Security may not be
transferred or exchanged except as a whole by the Depositary with
respect to such Book-Entry Security to a nominee of that Depositary or
by a nominee of that Depositary to that Depositary or another nominee of
that Depositary.
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None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of
the records relating to, or payments made on account of, beneficial
ownership interests in a Book-Entry Security or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security
has been acquired by a protected purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of the
same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities
of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or
agency maintained for this purpose pursuant to Section 1002; provided,
however, that at the option of the Company, interest on Securities of
any series that bear interest may be paid (i) by check mailed to the
address of the Person entitled thereto as it shall appear on the
Security Register or (ii) by wire transfer to an account maintained by
the Person entitled thereto as specified in the Security Register;
provided, that such Person shall have given the Trustee written wire
instructions at least five Business Days before the applicable Interest
Payment Date.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the
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proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities
of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered
as the owner of such Security for the purpose of receiving payment of
principal of and premium, if any and (subject to Section 307) any
interest on such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities so delivered and any Securities
surrendered directly to the Trustee for any such purpose shall be
promptly canceled by the Trustee and such cancellation shall be noted
conspicuously on each such Security. The Company may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of in accordance with
its customary procedures unless otherwise directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 311. CUSIP Numbers.
In issuing the Securities, the Company may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided,
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission
of such CUSIP numbers. The Company will promptly notify the
19
Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request 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
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) 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
(iv) are deemed paid and discharged pursuant to
Section 403, as applicable,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) 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 607, the
obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, or if money or obligations
shall have been deposited with or received by the Trustee pursuant to
Section 403, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money; Indemnification.
(a) Subject to the provisions of the last paragraph of Section
1003 and subsection (c) of this section and Section 615, all money
deposited with the Trustee pursuant to Section 401, all money and U.S.
Government Obligations or Foreign Government Securities deposited with
the Trustee pursuant to Section 403 or 1010 and all money received by
the Trustee in respect of U.S. Government Obligations or Foreign
Government Securities deposited with the Trustee pursuant to Section 403
or 1010, 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,
20
of the principal (and premium, if any) 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
Section 403 or 1010.
(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 or Foreign Government Securities deposited
pursuant to Section 403 or 1010, 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 Foreign
Government Securities or money held by it as provided in Section 403 or
1010 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 Obligations or Foreign Government
Securities or money were deposited or received. This provision shall not
authorize the sale by the Trustee of any U.S. Government Obligations or
Foreign Government Securities held under this Indenture.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
any Series.
If this Section 403 is specified, as contemplated by Section 301,
to be applicable 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 any such series, shall no longer be in effect (and the
Trustee, at the expense of the Company, shall at Company Request execute
proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to
receive, from the trust funds described in subparagraph (d)
hereof, (i) payment of the principal of (and premium, if any) and
each installment of principal of (and premium, if any) or interest
on the Outstanding Securities of such series on the Stated
Maturity of such principal or installment of principal 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;
(b) the Company's obligations with respect to such
Securities of such series under Sections 305, 306, 1002, 1003 and
1107; and
(c) the rights, powers, trusts and immunities of the Trustee
hereunder and the duties of the Trustee under Section 402 and the
duty of the Trustee to authenticate Securities of such series
issued on registration of transfer or exchange;
provided, however, that the following conditions 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, (i) in the case of Securities of such series
denominated in U.S. dollars, cash in U.S. dollars (or such other
money or currencies as shall then be legal tender in the United
States) and/or U.S. Government Obligations, or (ii) in the case of
Securities of such series denominated in a Foreign Currency (other
than a basket currency), money and/or Foreign Government
Securities in the same Foreign Currency, 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 and
discharge each installment of principal (and premium, if any)
(including mandatory sinking fund or analogous payments) of and
any interest on all the Securities of such series on the dates
such instalments of interest or principal are due;
(e) the trust arising from such deposit shall not constitute
a regulated investment company under the Investment Company Act of
1940, as amended, or such trust shall be so qualified;
(f) 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;
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(g) such provision would not cause any Outstanding
Securities of such series then listed on the New York Stock
Exchange or other securities exchange to be de-listed as a result
thereof;
(h) no Event of Default or event which with notice or lapse
of time would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on
the date of such deposit or during the period ending on the 91st
day after such date;
(i) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or that since the date of this
Indenture there has been a change in tax law, in either case to
the effect 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 deposits, defeasance and discharge and will be
subject to Federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(j) the Company has 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 404. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Sections 403 or 1010 with respect to any Securities by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which the
Company has been discharged or released pursuant to Section 403 or 1010
shall be revived and reinstated as though no deposit had occurred
pursuant to such Section with respect to such Securities, until such
time as the Trustee or Paying Agent is permitted to apply all money held
in trust pursuant to Section 403 or 1010 with respect to such Securities
in accordance with such Section; provided, however, that if the Company
makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Company
shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless it is
inapplicable to a particular series or is specifically deleted or
modified in the Board Resolution (or action taken pursuant thereto),
Officers' Certificate or supplemental indenture under which that series
of Securities is issued or has been modified in an indenture
supplemental hereto):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity, and
continuance of such default for a period of 30 days in the case of
a Security of that series that becomes due and payable by the
terms thereof pursuant to Article Twelve; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series, and
continuance of such default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture with respect to
Securities of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
22
Section specifically dealt), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in
an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or (B) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law,
or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
With respect to Securities of a series all or part of which is
represented by a Book-Entry Security, the Trustee may establish a record
date for determining Holders of Outstanding Securities of such series
entitled to join in the giving or making of any Notice of Default. The
Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such Notice of Default,
whether or not such Holders remain Holders after such record date;
provided, that no such action shall be effective hereunder unless
Holders of at least 25% in principal amount of the Outstanding
Securities of such series, or their proxies, shall have joined in such
Notice of Default prior to the day which is 90 days after such record
date. Nothing in this paragraph shall prevent the Trustee, after
expiration of such 90-day period, from setting a new record date
pursuant to the provisions of this Section 501, provided that nothing in
this paragraph shall be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities
of such series on the date such action is taken.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or, in
the case of Original Issue Discount Securities or Indexed Securities,
the specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
23
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and all
other amounts due to such Trustee under Section 607;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
With respect to Securities of a series all or part of which is
represented by a Book-Entry Security, the Trustee may establish a record
date for determining Holders of Outstanding Securities of such series
entitled to join in the giving or making of a declaration of
acceleration, or rescission and annulment, as the case may be. The
Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such declaration of
acceleration, or rescission and annulment, as the case may be, whether
or not such Holders remain Holders after such record date; provided,
that no such action shall be effective hereunder unless Holders of the
requisite percentage in principal amount of the Outstanding Securities
of such series, or their proxies, shall have joined in such declaration
of acceleration, or rescission and annulment, as the case may be, prior
to the day which is 90 days after such record date. Nothing in this
paragraph shall prevent the Trustee, after expiration of such 90-day
period, from setting a new record date pursuant to the provisions of
this Section 502, provided that nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of such series on
the date such action is taken.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof (other
than a Security that becomes due and payable by the terms thereof
pursuant to Article Twelve), or
(3) default is made in the payment of the principal of (or
premium, if any, on) any Security on the date fixed for redemption
of such Security by the terms thereof pursuant to Article Twelve
and such default continues for a period of 30 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any premium at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and
all other amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other obligor
upon such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company
or any other obligor upon such Securities, wherever situated.
24
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and all other amounts due to such Trustee
under Section 607) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607.
No provision hereof shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar
official and be a member of a creditors' or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and all other amounts due to such
Trustee under Section 607, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
25
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% of the principal amount
of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such requests;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders, or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium
and (subject to Section 307) interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the
Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies
of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or
in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
26
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
With respect to Securities of a series all or part of which is
represented by a Book-Entry Security, the Trustee may establish a record
date for determining Holders of Outstanding Securities of such series
entitled to join in the giving or making of a direction pursuant to this
Section 512. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such
direction, whether or not such Holders remain Holders after such record
date; provided, that no such direction shall be effective hereunder
unless a majority in principal amount of the Outstanding Securities of
that series shall have been obtained prior to the day which is 90 days
after such record date. Nothing in this paragraph shall prevent the
Trustee, after expiration of such 90-day period, from setting a new
record date pursuant to the provisions of this Section 512, provided
that nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of
Outstanding Securities of such series on the date such action is taken.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of, or any premium or
interest on, any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any past
default hereunder. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any default hereunder, whether or not such Holders
remain Holders after such record date; provided, that unless such
majority in principal amount shall have been obtained prior to the date
which is 90 days after such record date, any such waiver previously
given shall automatically and without further action by any Holder be
cancelled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any
party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series, or
to any suit instituted by any Holder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security on
or after the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on or after the Redemption Date).
27
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against such Trustee.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series
notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of
such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order or as otherwise expressly provided herein and any resolution
of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation
into
28
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(h) The Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Securities of any
series unless either (1) a Responsible Officer of the Trustee
shall have actual knowledge of such default or Event of Default or
(2) written notice of such default or Event of Default shall have
been given to the Trustee by the Company or any other obligor on
the Securities of any series or by any Holder of the Securities of
any series.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities and Serve as Trustee Under Other
Indentures.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
Subject to the provisions of Section 608, the Trustee may become
and act as trustee under other indentures under which other securities,
or certificates of interest or participation in other securities, of the
Company are outstanding in the same manner as if it were not Trustee.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee, and each predecessor Trustee, upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee, and each predecessor Trustee,
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders
29
of particular Securities. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 501
or in connection with Article Five hereof, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for
the service in connection therewith are intended to constitute expenses
of administration under any bankruptcy law. The provisions of this
Section shall survive the resignation or removal of the Trustee and
the termination of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign to the extent and in the manner
provided by, and subject to the provisions of the Trust Indenture Act
and this Indenture. To the extent permitted by such Act, the Trustee
shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more than one
series and the indenture dated as of October 1, 1997, between the
Company and The Chase Manhattan Bank as Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $500,000,000 subject to
supervision or examination by Federal or State authority and having its
Corporate Trust Office in The City of New York. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by or
pursuant to a Board Resolution may remove the Trustee with respect
to all Securities, or (ii) subject to Section 514, any Holder who
has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly
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appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 611. If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company or the Holders
and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series in the manner provided in Section 106. Each notice shall
include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and 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; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder. Any Trustee ceasing to act shall, nevertheless, retain its
prior lien upon all property or funds held or collected by such Trustee
to secure any amounts then due it pursuant to the provisions of Section
607.
(b) 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)
if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed 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 to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and 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; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be
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qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee or Authenticating Agent then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee or Authenticating Agent may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee or successor Authenticating Agent had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may, at the instruction and request of the Company,
appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $500,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint
a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class
mail, postage prepaid, to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, as their names
and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this
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Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By___________________________________
as Authenticating Agent
By___________________________________
Authorized Officer
SECTION 615. Investment of Certain Payments Held by the Trustee.
Any amounts deposited by the Company and held by the Trustee
hereunder, other than pursuant to Section 403 or Section 1010 hereof,
shall be invested by the Trustee from time to time at the direction of
the Company in such investments as may be specified by the Company and
reasonably agreed to by the Trustee from time to time; provided that no
amounts deposited in respect of any payment on a Security shall be
invested in an investment that matures after the due date of such
payment and that the Trustee shall have no liability to the Company for
any loss on such investments; provided, further, that in investing trust
funds pursuant to the terms of this Section and liquidating any
investments held in trust hereunder, the Trustee may, to the extent
permitted by law, purchase securities (including for the purposes of
this paragraph securities as to which the Trustee or a Trustee Affiliate
is the issuer or guarantor) from, and sell securities to, itself or any
Trustee Affiliate and purchase securities underwritten by, or in which a
market is made by, the Trustee or a Trustee Affiliate. For the purposes
hereof, a "Trustee Affiliate" shall mean an entity that directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Trustee. Any income
or gain realized as a result of any such investment shall be promptly
distributed (in no event later than the next Business Day) to the
Company after payment of any amounts required to be paid to the Holders
entitled thereto, except after the occurrence and during the continuance
of an Event of Default. The Trustee shall have no liability to the
Company for any loss resulting from any investment made in accordance
with this Section, and shall bear no expense in connection with any
investment pursuant to this Section. Any such investment may be sold
(without regard to maturity date) by the Trustee whenever necessary to
make any distribution required by this Indenture.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular
Record Date relating to that series, semi-annually on dates set
forth in a Board Resolution or Indenture supplemental hereto with
respect to such series furnished pursuant to Section 301) a list,
in such form as the Trustee for such series may reasonably
require, of the names and addresses of the Holders of that series
as of such date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar
for a particular series, no such list shall be required to be furnished
with respect to such series.
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SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it
as provided in Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Trustee, shall be as
provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by
reason of any disclosure of information as to names and addresses of
Holders made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust Indenture
Act, the Trustee shall, within sixty days after each May 15 following
the date of the first issuance of Securities hereunder, deliver to
Holders a brief report, dated as of that May 15, which complies with the
provisions of such Section 313.
A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which
any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any
stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer or lease the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership,
limited liability company or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on
all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have
happened and be continuing; and
34
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
This Section shall not apply to any merger or consolidation in
which the Company is the surviving corporation.
SECTION 802. Securities to be Secured in Certain Events.
If, upon any such consolidation or merger of the Company with or
into any other corporation, or upon any such conveyance, transfer or
lease of the property and assets of the Company substantially as an
entirety in accordance with Section 801, any of the property of the
Company (other than any property on which Section 1008 would permit the
Company to create, assume or suffer to exist Liens without equally and
ratably securing the Securities) would thereupon become subject to any
mortgage, pledge or lien, the Company, prior to such consolidation,
merger, conveyance, transfer or lease, will secure the due and punctual
payment of the principal of (and premium, if any) and interest on all
the Securities, equally and ratably with any other obligations of the
Company then entitled thereto, by a direct lien on all such property
prior to all liens other than any theretofore existing thereon.
SECTION 803. Successor Substituted.
Upon any consolidation with or merger of the Company into any
other Person, or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture
and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form or in the form of Book-Entry Securities; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided 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 such Security Outstanding;
or
35
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided that such action pursuant to this clause (9) other than
with respect to a defective provision shall not adversely affect
the interests of the Holders of Securities of any series in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in
principal amount of the Outstanding Securities of each series affected
by such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1011, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1011, or the
deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of
any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on
such record date or their duly designated proxies, and only such
Persons, shall be entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such record date;
provided, that unless such consent shall have become effective by virtue
of the requisite percentage having been obtained prior to the date which
is 90 days after such record date, any such consent previously given
shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Trustee is hereby
initially appointed Paying Agent, and the Corporate Trust Office of the
Trustee is initially designated as the office or agency where Securities
may be presented or surrendered for payment. The Company will 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, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series 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 each Place of Payment for
Securities of any series for such purposes. The Company will 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.
37
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date
of the principal of (and premium, if any) or interest on any of the
Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) comply with the provisions of the Trust Indenture Act applicable to
it as a Paying Agent and (2) during the continuance of any default by
the Company (or any other obligor upon the Securities of that series) in
the making of any payment in respect of the Securities of that series,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
received by the Trustee in respect of obligations deposited with the
Trustee pursuant to Section 403 or 1010, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or
interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become
due and payable shall be paid to the Company on Company Request (unless
otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law), or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough
of Manhattan, The City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company
or any Restricted Subsidiary or upon the income, profits or any
Principal Property of the Company or any Restricted Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon any Principal Property of the Company or
any Restricted Subsidiary; provided, however, that the Company shall not
be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim (a) whose amount, applicability or
validity is being contested in good faith by appropriate proceedings or
(b) which is not of material importance to the business, operations,
financial condition or results of operations of the Company and its
Restricted Subsidiaries taken as a whole.
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SECTION 1005. Maintenance of Principal Properties.
The Company will cause to be made to all Principal Properties all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing
in this Section shall prevent the Company or any Restricted Subsidiary
from discontinuing the operation and maintenance of any of such
Principal Properties or from omitting to make any repairs, renewals,
replacements, betterments or improvements thereof if such discontinuance
or omission is, in the judgment of the Company, desirable in the conduct
of the business of the Company and its Restricted Subsidiaries taken as
a whole.
SECTION 1006. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year, a brief certificate (which shall not be deemed
an Officers' Certificate and need not conform with any of the provisions
of Section 102) from the principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants
under this Indenture, or as otherwise provided by the Trust Indenture
Act. For purposes of this Section 1006, such compliance shall be
determined without regard to any period of grace or requirement of
notice under this Indenture.
SECTION 1007. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve
any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company.
SECTION 1008. Limitation upon Liens.
The Company will not itself, and will not permit any Restricted
Subsidiary to, create, incur, issue, assume, guarantee or secure any
notes, bonds, debentures or other similar evidences of indebtedness for
money borrowed (notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed being hereinafter in this Section and
Section 1009 called "Debt"), secured by any pledge of, or mortgage,
lien, encumbrance or security interest on (such pledges, mortgages,
liens, encumbrances and security interests being hereinafter in this
Section, in Section 802 and in Section 1009 collectively called
"Liens"), any Principal Property owned or leased by the Company or any
Restricted Subsidiary, or on any shares of stock or Debt of any
Restricted Subsidiary owned or held by the Company or any other
Restricted Subsidiary, without effectively providing that the Securities
(together with, if the Company shall so determine, any other Debt of the
Company or such Restricted Subsidiary then existing or thereafter
created which is not subordinate to the Securities) shall be secured
equally and ratably with (or prior to) such secured Debt (for the
purpose of providing such equal and ratable security, the principal
amount of any Securities shall mean the aggregate principal amount of
such Securities that are Outstanding and shall not be less than that
principal amount which could be declared to be due and payable pursuant
to Section 502 on the date of the making of such effective provision,
and the extent of such equal and ratable security shall be adjusted, to
the extent permitted by law, as and when said principal amount changes
over time pursuant to Section 502 and any other provision hereof), so
long as such secured Debt shall be so secured, unless, after giving
effect thereto, the aggregate principal amount of all such secured Debt
then outstanding plus Attributable Debt of the Company and its
Restricted Subsidiaries in respect of Sale and Leaseback Transactions
(as defined in Section 1009) entered into after the date of this
Indenture (other than Sale and Leaseback Transactions permitted by
Section 1009(b)) would not exceed an amount equal to 15% of Consolidated
Net Tangible Assets; provided, however, that nothing contained in this
Section shall prevent, restrict or apply to, and there shall be excluded
from secured Debt in any computation under this Section, Debt secured
by:
(a) Liens on any property or assets of the Company or any
Restricted Subsidiary or on any shares of stock or Debt existing
as of the date of this Indenture;
(b) Liens on any property or assets of, or on any shares of
stock or Debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
39
(c) Liens on any property or assets or shares of stock or
Debt existing at the time of acquisition thereof (including
acquisition through merger or consolidation) or securing the
payment of all or any part of the purchase price or construction
cost thereof or securing any Debt incurred prior to, at the time
of or within 120 days after the acquisition of such property or
assets or shares of stock or Debt or the completion of any such
construction, whichever is later, for the purpose of financing all
or any part of the purchase price or construction cost thereof
(provided such Liens are limited to such shares of stock or Debt,
property or assets, improvements thereon and the land upon which
such property, assets and improvements are located and any other
property or assets not then constituting a Principal Property);
(d) Liens on any property or assets to secure all or any
part of the cost of exploration, drilling, development, operation,
construction, alteration, repair or improvement of all or any part
of such property or assets, or to secure Debt incurred prior to,
at the time of or within 120 days after the completion of such
exploration, drilling, development, operation, construction,
alteration, repair or improvement, whichever is later, for the
purpose of financing all or any part of such cost (provided such
Liens are limited to such property or assets, improvements thereon
and the land upon which such property, assets and improvements are
located and any other property or assets not then constituting a
Principal Property);
(e) Liens which secure Debt owing to the Company or another
Restricted Subsidiary by a Restricted Subsidiary;
(f) Liens arising from the assignment of moneys due and to
become due under contracts between the Company or any Restricted
Subsidiary and the United States of America, any State, Territory
or possession thereof or any agency, department, instrumentality
or political subdivision of any thereof; or Liens in favor of the
United States of America, any State, Commonwealth, Territory or
possession thereof or any agency, department, instrumentality or
political subdivision of any thereof, pursuant to the provisions
of any contract not directly or indirectly in connection with
securing Debt;
(g) any deposit or pledge as security for the performance of
any bid, tender, contract, lease or undertaking not directly or
indirectly in connection with the securing of Debt; any deposit or
pledge with any governmental agency required or permitted to
qualify the Company or any Restricted Subsidiary to conduct
business, to maintain self-insurance or to obtain the benefits of
any law pertaining to workmen's compensation, unemployment
insurance, old age pensions, social security or similar matters,
or to obtain any stay or discharge in any legal or administrative
proceedings; deposits or pledges to obtain the release of
mechanics', workmen's, repairmen's, materialmen's or
warehousemen's liens or the release of property in the possession
of a common carrier; any security interest created in connection
with the sale, discount or guarantee of notes, chattel mortgages,
leases, accounts receivable, trade acceptances or other paper, or
contingent repurchase obligations, arising out of sales of
merchandise in the ordinary course of business; liens permitted by
Section 1004; or other deposits or pledges similar to those
referred to in this subdivision (g);
(h) Liens arising by reason of any judgment, decree or order
of any court or other governmental authority, so long as any
appropriate legal proceedings which may have been initiated for
the review of such judgment, decree or order shall not have been
finally terminated or so long as the period within which such
proceedings may be initiated shall not have expired; and
(i) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements),
as a whole or in part, of any of the Liens referred to in
subdivisions (a) through (h) above or the Debt secured thereby;
provided that (1) such extension, renewal, substitution or
replacement Lien shall be limited to all or any part of the same
property or assets, shares of stock or Debt that secured the Lien
extended, renewed, substituted or replaced (plus improvements on
such property and any other property or assets not then
constituting a Principal Property) and (2) in the case of
subdivisions (a) through (c) above, the Debt secured by such Lien
at such time is not increased.
Debt created by the Company or any Restricted Subsidiary shall not
be cumulated with a guarantee of the same Debt by the Company or any
other Restricted Subsidiary for the same financial obligation.
For purposes of this Section, the following shall not be deemed to
be Liens securing Debt and, accordingly, nothing contained in this
Section shall prevent, restrict or apply to: (x) any acquisition by the
Company or any Restricted Subsidiary of any property or assets subject
to any reservation or exception under the terms of which any vendor,
lessor or assignor creates, reserves or excepts or has created, reserved
or excepted an interest in oil, gas and/or any other mineral and/or the
proceeds thereof, (y) any conveyance or assignment under the terms of
which the Company or any Restricted Subsidiary conveys or assigns to any
Person or Persons an interest in oil, gas and/or any other mineral
and/or the proceeds thereof, or (z) any Lien upon any property or assets
owned or leased
40
by the Company or any Restricted Subsidiary or in which the Company or
any Restricted Subsidiary owns an interest to secure to the Person or
Persons paying the expenses of developing and/or conducting operations
for the recovery, storage, transportation and/or sale of the mineral
resources of the said property (or property with which it is unitized)
the payment to such Person or Persons of the Company's or the Restricted
Subsidiary's proportionate part of such development and/or operating
expense.
SECTION 1009. Limitation upon Sales and Leasebacks.
The Company will not itself, and will not permit any Restricted
Subsidiary to, enter into any arrangement after the date of this
Indenture with any bank, insurance company or other lender or investor
(other than the Company or another Restricted Subsidiary) providing for
the leasing by the Company or any such Restricted Subsidiary of any
Principal Property (except a lease for a temporary period not to exceed
three years by the end of which it is intended that the use of such
Principal Property by the lessee will be discontinued), which was or is
owned or leased by the Company or a Restricted Subsidiary and which has
been or is to be sold or transferred, more than 120 days after the
acquisition or the completion of construction and commencement of full
operation thereof, by the Company or such Restricted Subsidiary to such
lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal
Property (herein referred to as a "Sale and Leaseback Transaction")
unless, either:
(a) The Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such Sale and Leaseback Transaction and
all other Sale and Leaseback Transactions entered into after the
date of this Indenture (other than Sale and Leaseback Transactions
permitted by Section 1009(b)), plus the aggregate principal amount
of Debt secured by Liens on Principal Properties then outstanding
(excluding any such Debt secured by Liens covered in subdivisions
(a) through (i) of the first paragraph of Section 1008) without
equally and ratably securing the Securities, would not exceed 15%
of Consolidated Net Tangible Assets, or
(b) The Company applies, within 120 days after the sale or
transfer, an amount equal to the fair market value of the
Principal Property so sold and leased back at the time of entering
into such sale and leaseback transaction (as determined by any two
of the following: the Chairman or Vice Chairman of the Board, the
President, any Vice Chairman, any Vice President, the Treasurer
and the Controller of the Company) to (i) the purchase of any
asset or any interest in an asset that would qualify, after
purchase, as a Principal Property or the retirement of Funded Debt
(including Securities of any series constituting Funded Debt) of
the Company (and any redemption of Securities of any series
pursuant to this provision shall, if provided in the terms of such
particular series of Securities, not be prohibited pursuant to any
redemption provision of such series otherwise prohibiting
redemption when such would constitute a refunding operation or
anticipated refunding operation or similar refunding operation);
provided, that the amount to be applied to the retirement of
Funded Debt of the Company shall be reduced by (i) the principal
amount of Securities delivered within 120 days after such sale or
transfer to the Trustee for redemption and cancellation, and (ii)
the principal amount of Funded Debt, other than Securities,
voluntarily retired by the Company within 120 days after such
sale. For purposes of clauses (i) and (ii) of the foregoing
proviso, the principal amount of any Securities shall mean the
aggregate principal amount of such Securities that are Outstanding
and shall not be less than that principal amount that could be
declared to be due and payable pursuant to Section 502 at the time
of determination. Notwithstanding the foregoing, no retirement
referred to in this subdivision (b) may be effected by payment at
maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision.
Notwithstanding the foregoing, where the Company or any Restricted
Subsidiary is the lessee in any sale and leaseback transaction,
Attributable Debt shall not include any Debt resulting from the
guarantee by the Company or any other Restricted Subsidiary of the
lessee's obligation thereunder.
SECTION 1010. Defeasance of Certain Obligations
If this Section is specified, as contemplated by Section 301, to
be applicable to Securities of any series, (a) the Company may omit to
comply with any term, provision or condition set forth in Sections 802,
1006, 1008 and 1009 with respect to the Securities of such series, and
any covenants provided pursuant to Sections 301(19), 901(2), 901(7), in
each case with respect to Securities of such series, and (b) the
occurrence of any event specified in Sections 501(4) (with respect to
any of Section 802, 1006, 1008 or 1009, and any such covenants or
defaults provided pursuant to Sections 301(19), 901(2), 901(7) or
501(7)) shall be deemed not to be or result in an Event of Default, in
each case with respect to Securities of such Series as provided in this
Section, provided that the following conditions shall have been
satisfied:
41
(1) with reference to this Section 1010, the Company has
deposited or caused to be irrevocably deposited (except as
provided in Section 403) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such (i) in the case of Securities of
such series denominated in U.S. dollars, cash in U.S. dollars (or
such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations, or (ii) in
the case of Securities of such series denominated in a Foreign
Currency (other than a basket currency), money and/or Foreign
Government Securities in the same Foreign Currency, 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 and discharge each installment of principal
(and premium, if any) (including mandatory sinking fund or
analogous payments) of and any interest on all the Securities of
such series on the dates such instalments of interest or principal
are due;
(2) such deposit shall not, in the Opinion of Counsel, cause
the Trustee with respect to the Securities of such series to have
a conflicting interest as defined in Section 608 and for purposes
of the Trust Indenture Act with respect to the Securities of such
series;
(3) the trust arising from such deposit shall not constitute
a regulated investment company under the Investment Company Act of
1940, as amended, or such trust shall be so qualified;
(4) 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;
(5) no Event of Default or event which with notice or lapse
of time would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on
the date of such deposit;
(6) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect 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 of certain obligations 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
and defeasance had not occurred; and
(7) 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
defeasance contemplated by this Section have been complied with.
SECTION 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1009, inclusive,
with respect to the Securities of any series if before or after the time
for such compliance the Holders of at least 66 2/3% in principal amount
of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force
and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive compliance
with any covenant or condition hereunder. If a record date is fixed, the
Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to waive any such compliance, whether or
not such Holders remain Holders after such record date; provided, that
unless the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall have waived such compliance
prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.
42
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution or Officers Certificate.
In case of any redemption at the election of the Company of less than
all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to
be redeemed, and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed),
the particular Securities of a specified tenor to be redeemed shall be
selected not more than 90 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series and of the tenor
subject to such redemption and not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any
integral multiple thereof), of the principal amount of Securities of
such series and specified tenor of a denomination larger than the
minimum authorized denomination for Securities of that series and
specified tenor.
The Trustee shall promptly notify the Company and the Security
Registrar, if other than the Trustee, in writing of the Securities
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which
has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 90 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) in the case of partial redemption of any Securities, the
principal amounts of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof
to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
43
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof which are to
be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, instalments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered. If a Book-Entry
Security is so surrendered, such new Security so issued shall be a new
Book-Entry Security.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred
to as an "optional sinking fund payment". If provided for by the terms
of Securities of any series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
44
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a
credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided
that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 1202 and will
also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1301. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer, director, or employee, as such, past, present or
future, of the Company or of any successor Person, either directly or
through the Company, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the
Company, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders,
officers, directors, or employees, as such, of the Company or of any
successor Person, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution
or statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer, director, or employee, as such,
because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are
hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
* * * * *
45
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed.
SOLUTIA INC.
By_________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By_________________________
Name:
Title:
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