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EXHIBIT 4.1
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HUSSMANN INTERNATIONAL, INC.
AND
THE BANK OF NEW YORK,
AS TRUSTEE
______________________
INDENTURE
DATED AS OF __________, 1998
_____________________
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TABLE OF CONTENTS
ARTICLE ONE
Definitions
Section 1.01. Certain Terms Defined . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.03. Incorporation by Reference of Trust
Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO
Issue, Description, Execution, Registration,
Registration of Transfer and Exchange of Securities
Section 2.01. Amount Unlimited; Establishment of Series . . . . . . . . . . 8
Section 2.02. Form of Securities and Trustee's
Certificate of Authentication . . . . . . . . . . . . . . . . 11
Section 2.03. Global Securities . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.04. Denomination, Authentication and Dating of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.05. Execution of Securities . . . . . . . . . . . . . . . . . . . 16
Section 2.06. Registration of Transfer and Exchange . . . . . . . . . . . . 16
Section 2.07. Temporary Securities . . . . . . . . . . . . . . . . . . . . . 18
Section 2.08. Mutilated, Destroyed, Lost or Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.09. Cancellation of Surrendered Securities . . . . . . . . . . . . 19
Section 2.10. Provisions of Indenture and Securities
for the Sole Benefit of the Parties and the
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.11. Computation of Interest . . . . . . . . . . . . . . . . . . . 20
Section 2.12. Authenticating Agents . . . . . . . . . . . . . . . . . . . . 20
Section 2.13. Compliance with Certain Laws and Regulations . . . . . . . . . 21
Section 2.14. Medium-Term Securities . . . . . . . . . . . . . . . . . . . . 21
Section 2.15. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE THREE
Redemption of Securities - Sinking Fund
Section 3.01. Applicability of Article . . . . . . . . . . . . . . . . . . . 22
Section 3.02. Notice of Redemption; Selection of Securities . . . . . . . . 23
Section 3.03. When Securities Called for Redemption
Become Due and Payable . . . . . . . . . . . . . . . . . . . 24
Section 3.04. Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.05. Use of Acquired Securities to Satisfy
Sinking Fund Obligation . . . . . . . . . . . . . . . . . . . 26
Section 3.06. Effect of Failure to Deliver Officers'
Certificate or Securities . . . . . . . . . . . . . . . . . . 26
Section 3.07. Manner of Redeeming Securities . . . . . . . . . . . . . . . . 26
Section 3.08. Sinking Fund Moneys to Be Held as Security
During Continuance of Event of Default;
Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . 27
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ARTICLE FOUR
Particular Covenants of the Company
Section 4.01. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.02. Payments of Principal of (and Premium,
if any) and Interest, if any, on Securities . . . . . . . . . 28
Section 4.03. Maintenance of Offices or Agencies for
Registration of Transfer, Exchange and
Payment of Securities . . . . . . . . . . . . . . . . . . . . 28
Section 4.04. Appointment to Fill a Vacancy in the
Office of Trustee . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.05. Duties and Rights of Paying Agents; Company
as Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.06. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . 30
Section 4.07. Limitation on Sale and Lease-Back . . . . . . . . . . . . . . 33
Section 4.08. Exempted Indebtedness . . . . . . . . . . . . . . . . . . . . 33
Section 4.09. Annual Certificate of Compliance . . . . . . . . . . . . . . . 34
Section 4.10. Further Instruments and Acts . . . . . . . . . . . . . . . . . 34
Section 4.11. Calculation of Original Issue Discount . . . . . . . . . . . . 34
ARTICLE FIVE
Holders' Lists and Reports by the Company
and the Trustee
Section 5.01. Company to Furnish Trustee Information
as to Names and Addresses of Holders . . . . . . . . . . . . 34
Section 5.02. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 5.03. Reports by Company . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.04. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE SIX
Remedies
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 38
Section 6.02. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . 41
Section 6.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . 42
Section 6.05. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . 43
Section 6.06. Application of Moneys Collected . . . . . . . . . . . . . . . 43
Section 6.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 44
Section 6.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . . . . 45
Section 6.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . 46
Section 6.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 46
Section 6.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . 46
Section 6.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 47
Section 6.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 47
Section 6.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . 47
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ARTICLE SEVEN
The Trustee
Section 7.01. Certain Duties and Responsibilities . . . . . . . . . . . . . 48
Section 7.02. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . 49
Section 7.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . 50
Section 7.04. Trustee Not Liable for Recitals in
Indenture or in Securities . . . . . . . . . . . . . . . . . 52
Section 7.05. Trustee, Paying Agent or Security
Registrar May Own Securities . . . . . . . . . . . . . . . . 52
Section 7.06. Moneys Received by Trustee to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.07. Compensation and Reimbursement . . . . . . . . . . . . . . . . 52
Section 7.08. Right of Trustee to Rely on an Officers'
Certificate Where No Other Evidence
Specifically Prescribed . . . . . . . . . . . . . . . . . . . 53
Section 7.09. Disqualification; Conflicting Interests . . . . . . . . . . . 53
Section 7.10. Corporate Trustee Required; Requirements
for Eligibility. . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.11. Resignation and Removal of Trustee;
Appointment of Successor . . . . . . . . . . . . . . . . . . 54
Section 7.12. Acceptance by Successor to Trustee . . . . . . . . . . . . . . 56
Section 7.13. Successor to Trustee by Merger,
Consolidation or Succession to Business . . . . . . . . . . . 58
Section 7.14. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 7.15. Appointment of Additional and Separate
Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT
Concerning the Holders
Section 8.01. Evidence of Action by Holders . . . . . . . . . . . . . . . . 62
Section 8.02. Proof of Execution of Instruments and
of Holding of Securities . . . . . . . . . . . . . . . . . . 62
Section 8.03. Who May Be Deemed Owner of Securities . . . . . . . . . . . . 63
Section 8.04. Securities Owned by Company or Controlled
or Controlling Companies Disregarded for
Certain Purposes . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.05. Instruments Executed by Holders Bind
Future Holders . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE NINE
Holders' Meetings and Consents
Section 9.01. Purposes for Which Meeting May Be Called . . . . . . . . . . . 65
Section 9.02. Call of Meeting by Trustee . . . . . . . . . . . . . . . . . . 65
Section 9.03. Call of Meetings by Company or Holders . . . . . . . . . . . . 65
Section 9.04. Who May Attend and Vote at Meetings . . . . . . . . . . . . . 66
Section 9.05. Regulations May Be Made by Trustee . . . . . . . . . . . . . . 66
Section 9.06. Manner of Voting at Meetings and Record
to Be Kept . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 9.07. Written Consent in Lieu of Meetings . . . . . . . . . . . . . 67
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Section 9.08. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . 68
ARTICLE TEN
Supplemental Indentures
Section 10.01. Purposes for Which Supplemental
Indentures May Be Entered into Without
Consent of Holders . . . . . . . . . . . . . . . . . . . . . 68
Section 10.02. Modification of Indenture with Consent
of Holders of a Majority in Principal
Amount of Securities . . . . . . . . . . . . . . . . . . . . 70
Section 10.03. Effect of Supplemental Indentures . . . . . . . . . . . . . . 71
Section 10.04. Securities May Bear Notation of Changes by
Supplemental Indentures . . . . . . . . . . . . . . . . . . 72
ARTICLE ELEVEN
Consolidation, Merger, Sale, Conveyance or Lease
Section 11.01. Company May Consolidate, etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 11.02. Successor Corporation to Be Substituted . . . . . . . . . . . 73
Section 11.03. Opinion of Counsel to Be Given Trustee . . . . . . . . . . . 73
ARTICLE TWELVE
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 12.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . 74
Section 12.02. Defeasance and Discharge of Securities
or Certain Obligations . . . . . . . . . . . . . . . . . . . 74
Section 12.03. Application by Trustee of Funds Deposited
for Payment of Securities . . . . . . . . . . . . . . . . . 78
Section 12.04. Repayment of Moneys Held by Paying Agent . . . . . . . . . . 79
Section 12.05. Repayment of Moneys Held by Trustee . . . . . . . . . . . . . 79
ARTICLE THIRTEEN
Immunity of Incorporators, Stockholders,Officers, Directors and Employees
Section 13.01. Incorporators, Stockholders, Officers,
Directors and Employees of Company Exempt
from Individual Liability . . . . . . . . . . . . . . . . . 79
ARTICLE FOURTEEN
Miscellaneous Provisions
Section 14.01. Successors and Assigns of Company Bound
by Indenture . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 14.02. Acts of Board, Committee or Officer of
Successor Corporation Valid . . . . . . . . . . . . . . . . 80
Section 14.03. Required Notices or Demands . . . . . . . . . . . . . . . . . 80
Section 14.04. Indenture and Securities to Be Construed in
Accordance with the Laws of the State of
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New York . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 14.05. Officers' Certificate and Opinion of
Counsel to Be Furnished upon Application
or Request by the Company . . . . . . . . . . . . . . . . . 81
Section 14.06. Payments Due on Non-Business Days . . . . . . . . . . . . . . 82
Section 14.07. Moneys of Different Currencies to Be
Segregated . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 14.08. Payment to Be in Proper Currency . . . . . . . . . . . . . . 82
Section 14.09. Provisions Required by Trust Indenture
Act of 1939 to Control . . . . . . . . . . . . . . . . . . . 83
Section 14.10. Indenture May Be Executed in Counterparts . . . . . . . . . . 83
Section 14.11. Separability Clause . . . . . . . . . . . . . . . . . . . . . 83
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INDENTURE, dated as of the ___ day of _______, 1998 between Hussmann
International, Inc., a corporation incorporated under the laws of Delaware (the
"Company"), and The Bank of New York, a New York banking corporation (the
"Trustee").
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
unsecured debentures, notes and other evidences of indebtedness (hereinafter
referred to as the "Securities"), to be issued in one or more series in an
unlimited amount as provided in this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a
valid agreement 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, the Company and the Trustee mutually
covenant and agree, for the equal and proportionate benefit of the respective
Holders from time to time of the Securities, and of the Coupons, if any,
appertaining thereto, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CERTAIN TERMS DEFINED. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01:
"Authorized Newspaper" shall mean a newspaper printed in the
English language or official language of the country of publication and
customarily published at least once a day on each business day in each calendar
week and of general circulation in the place or places of publication, whether
or not such newspaper is published on Saturdays, Sundays and legal holidays.
Whenever, under the provisions of this Indenture, two or more publications of a
notice or other communication are required or permitted, such publications may
be in the same or different Authorized Newspapers. If, because of temporary or
permanent suspension of publication or general circulation of any newspaper or
for any other reason, it is impossible or impracticable to publish any notices
required by this Indenture in the manner herein provided, then such publication
in lieu thereof or such other notice as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such notice.
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"Bankruptcy Law" shall mean Title 11 of the United States Code or
any similar federal or state law for the relief of debtors.
"Board of Directors" when used with reference to the Company,
shall mean the Board of Directors of the Company or any committee of such Board
of Directors authorized to act on its behalf with respect to any particular
matter.
"Business Day" shall mean any day other than a Saturday or Sunday
and other than a day on which banking institutions in New York, New York or any
other jurisdiction in which the Paying Agent is being utilized, are authorized
or obligated by law or executive order to close or, with reference to any
Securities of any series, as set forth in the instrument establishing the
series and in the Securities of such series.
"Certified Board Resolution" shall mean one or more resolutions
certified by the Secretary or any Assistant Secretary of the Company to have
been duly adopted or consented to by the Board of Directors and to be in full
force and effect on the date of such certification.
"Company" shall mean Hussmann International, Inc. and, subject to
the provisions of Article Eleven, shall mean its successors and assigns from
time to time hereafter.
"Company Direction" or a "Company Request" shall mean a written
direction or request of the Company, signed by its Chairman, President, Chief
Executive Officer, any Executive Vice President, Senior Vice President or Vice
President and by its Secretary, any Assistant Secretary, its Treasurer, or any
Assistant Treasurer.
"Consolidated Net Tangible Assets" shall mean the excess of
tangible assets over total liabilities of the Company and its consolidated
Subsidiaries, as determined from time to time in accordance with generally
accepted accounting principles consistently applied.
"Consolidated Net Worth" shall mean the excess of assets over
total liabilities of the Company and its consolidated Subsidiaries plus
Minority Interests, as determined from time to time in accordance with
generally accepted accounting principles consistently applied.
"Corporate Trust Office" or other similar term, shall mean the
principal corporate trust office of the Trustee, at which at any particular
time its corporate trust business shall be administered, or, if no such office
is maintained, such other office of the Trustee as shall be designated. The
Corporate
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Trust Office on the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00
Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Coupon" shall mean any interest coupon appertaining to a
Security.
"Depositary" shall mean, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depositary by the Company pursuant to
Section 2.01 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each person who is then a Depositary hereunder, and if at any
time there is more than one such person, "Depositary" as used with respect to
the Securities of any such series shall mean the Depositary with respect to the
Securities of that series.
"Dollars and $" shall mean lawful money of the United States of
America.
"Event of Default" shall mean any event specified in Section
6.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Global Security" shall mean a Security evidencing all or part of
a series of Securities issued to, and registered in the name of, the Depositary
for such series (or its nominee) in accordance with Section 2.03.
"Government Obligations" with respect to any series of Securities
shall mean (i) direct noncallable obligations of the government which issued
the currency in which the Securities of that series are denominated or (ii)
noncallable obligations the payment of the principal of and interest on which
is fully guaranteed by such government and which, in either case, are full
faith and credit obligations of such government.
"Holder", with respect to a registered Security, shall mean any
person in whose name such Security shall be registered on the Security
Register, and, with respect to an unregistered Security, shall mean the bearer
thereof or any Coupon appertaining thereto.
"Indenture" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented,
and shall include the terms and forms of particular series of Securities
established as contemplated hereunder.
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"Interest Payment Date" shall mean the date on which an
installment of interest on any series of Securities shall become due and
payable, as therein or herein provided.
"Maturity" when used with respect to any Security shall mean the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Minority Interest" shall mean any shares of stock of any class
of a Subsidiary (other than directors' qualifying shares) that are not owned by
the Company or any Subsidiary.
"Officers' Certificate" shall mean a certificate of the Company,
signed by its Chairman, President, Chief Executive Officer, any Executive Vice
President, Senior Vice President or Vice President and by its Secretary, any
Assistant Secretary, its Treasurer or any Assistant Treasurer, delivered to the
Trustee. Each such certificate shall include (except as otherwise provided in
this Indenture) the statements provided for in Section 14.05.
"Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who may be an employee of, or counsel to, the Company. Each
such opinion shall include (except as otherwise provided in this Indenture) the
statements provided for in Section 14.05.
"Original Issue Discount Security" shall mean 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 Stated Maturity thereof
pursuant to Section 6.02.
"Outstanding" when used with reference to Securities of any
series, subject to the provisions of Section 8.04, shall mean, as of any
particular time, all Securities of such series authenticated by the Trustee and
delivered under this Indenture, except:
(a) Securities of such series theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities of such series paid pursuant to Section 2.09 or
Securities of such series or portions thereof for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); provided
that, if
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such Securities or portions thereof are to be redeemed, notice of such
redemption shall have been given as provided in Article Three or
provision satisfactory to the Trustee shall have been made for giving
such notice;
(c) Securities of such series in lieu of or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to this Indenture, other than Securities as to which the
Trustee receives proof satisfactory to it that such Security is held by
a bona fide purchaser in whose hands such Security is a legal, valid and
binding obligation of the Company; and
(d) Securities which have been defaced pursuant to Section
12.02;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Securities of any or all series then Outstanding have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Security which
shall be deemed to be Outstanding for such purposes shall be the portion of the
principal amount thereof that could be declared to be due and payable upon the
occurrence of an Event of Default and the continuation thereof pursuant to the
terms of such Original Issue Discount Security as of such time.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government, or any agency or political subdivision thereof.
"Principal Property" shall mean any manufacturing plant or
warehouse owned or leased by the Company or any Subsidiary and located within
the United States of America, whether owned or leased on the date hereof or
hereafter, the gross book value of which exceeds 2% of Consolidated Net Worth,
other than manufacturing plants and warehouses which the Board of Directors by
resolution declares are not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries as an entirety and
which, when taken together with all other plants and warehouses as to which
such a declaration has been so made, is so declared by the Board of Directors
to be not of material importance to the total business conducted by the Company
and its Restricted Subsidiaries as an entirety.
"Record Date" as used with respect to any Interest Payment Date
shall mean the close of business on the 15th day of the month preceding the
month in which an Interest Payment Date occurs, if such Interest Payment Date
is the first day of such month, or the first day of the month in which an
Interest Payment
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Date occurs, if such Interest Payment Date is the 15th day of such month, in
each case whether or not a Business Day, or such other dates with respect to a
particular series of Securities as may be specified in the instrument
establishing such series.
"Responsible Officer" when used with respect to the Trustee shall
mean any vice president, any assistant vice president, any assistant secretary,
any assistant treasurer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" shall mean any Subsidiary which owns or
leases a Principal Property.
"Security or Securities" shall have the meaning stated in the
recital of this Indenture and shall more particularly mean any Security or such
Securities, as the case may be, authenticated and delivered pursuant to this
Indenture.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Sinking Fund" shall mean any fund established by the Company for
redemption of the Securities of any series prior to Stated Maturity.
"Stated Maturity", when used with respect to any Security, shall
mean the date on which the last payment of principal of such Security is due
and payable in accordance with the terms thereof.
"Subsidiary" shall mean any corporation, association or other
business entity of which at least a majority of the outstanding securities or
equity interests having ordinary voting power to elect a majority of the board
of directors of such corporation or Persons performing similar functions
(whether or not any other class of securities or equity interests has or might
have voting power by reason of the happening occurrence a contingency) is at
the time owned or controlled, directly or indirectly, by the Company, or by one
or more Subsidiaries, or by the Company and one or more Subsidiaries.
"Trustee" shall mean the Trustee named in the first paragraph of
this Indenture until a successor Trustee shall have
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become such pursuant to the applicable provisions hereof, and thereafter
"Trustee" shall mean or include all Trustees hereunder, and, subject to the
provisions of Article Seven, shall also include its successors and assigns,
and, unless the context otherwise requires, shall also include any co-trustee
or co-trustees or separate trustee or trustees appointed pursuant to Section
7.15.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
as amended, as in force on the date of this Indenture; provided, however, that
in the event that such Act is amended after such date, "Trust Indenture Act"
shall mean, to the extent required by such amendment or the context of this
Indenture, the Trust Indenture Act of 1939 as so amended.
SECTION 1.02. OTHER DEFINITIONS. The terms listed below in this
Section 1.02 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and any
indenture supplemental hereto shall have the respective meanings specified in
the sections of this Indenture set opposite the particular term:
Defined in
Terms Section
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Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.06
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 2.03
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . 4.07
Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.06
Mandatory Sinking Fund payment . . . . . . . . . . . . . . . 3.04
Market Exchange Rate . . . . . . . . . . . . . . . . . . . 14.08
Optional Sinking Fund payment . . . . . . . . . . . . . . . 3.04
Sale and Lease-Back Transaction . . . . . . . . . . . . . . 4.07
Security Register and Security Registrar . . . . . . . . . . 2.06
Sinking Fund payment date . . . . . . . . . . . . . . . . . 3.04
Specified Currency . . . . . . . . . . . . . . . . . . . . 14.08
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.07
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture.
All terms not defined in this Article One which are defined in the Trust
Indenture Act, or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided and unless the context otherwise
requires), shall have the meanings assigned to such terms in the Trust
Indenture Act and in the Securities Act as in force as of the date of this
Indenture. The following Trust Indenture Act terms used in the provisions of
the Trust Indenture Act incorporated by reference in this Indenture shall have
the following meanings:
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"Commission" shall mean the SEC.
"Indenture Securities" shall mean the Securities.
"Indenture to Be Qualified" shall mean this Indenture.
"Indenture Trustee or Institutional Trustee" shall mean the
Trustee.
"Obligor" with reference to Indenture Securities shall mean the
Company.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. AMOUNT UNLIMITED; ESTABLISHMENT OF SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series; and each such
series shall rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company. All Securities of any one series shall be
substantially identical except as to denomination and except as the Company in
an Officers' Certificate delivered pursuant to this Section 2.01 or in any
supplemental indenture may otherwise provide. The Securities may bear interest
at such lawful rate or rates, from such date or dates, shall mature at such
time or times, may be redeemable at such price or prices and upon such terms,
including, without limitation, out of proceeds from the sale of other
Securities, or other indebtedness of the Company, and may contain and/or be
subject to such other terms and provisions as shall be determined by the
Company prior to the issuance of such Securities in accordance with the
authority granted in one or more resolutions of the Board of Directors and set
forth in an Officers' Certificate or a supplemental indenture, which instrument
shall establish with respect to each series of Securities:
(1) the designation of the Securities of such series, which
shall distinguish the Securities of one series from all other
Securities;
(2) the limit upon the aggregate principal amount at Stated
Maturity of the Securities of such series which may be authenticated and
delivered under this Indenture (not including Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to Section 2.06,
2.07, 2.08, 3.02 or 10.04);
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(3) the rate or rates at which the Securities of such series
shall bear interest, if any, or the formula or method by which interest
shall accrue, the dates from which interest shall accrue, the Interest
Payment Dates on which such interest shall be payable, and, in the case
of registered Securities, the Record Date for the interest payable on
any Interest Payment Date;
(4) the Stated Maturity of the Securities of such series;
(5) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, the Securities of such
series may be redeemed, in whole or in part, at the option of the
Company;
(6) the obligation, if any, of the Company to redeem or
purchase Securities of such series pursuant to a sinking, purchase or
analogous fund or at the option of the holder thereof and the period or
periods within which, the price or prices at which, and the terms and
conditions upon which, the Securities of such series shall be redeemed,
or purchased, in whole or in part, pursuant to such obligation;
(7) if other than the principal amount at Stated Maturity, the
portion of the principal amount at Stated Maturity of the Securities of
such series which shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.02;
(8) if other than denominations of $1,000, if registered, and
$5,000, if unregistered, and any integral multiple of such denominations
for Securities denominated in Dollars, the denominations in which the
Securities of such series shall be issuable;
(9) the form of Security to be used to evidence ownership of
Securities of such series;
(10) any terms with respect to conversion of the Securities of
such series, warrants attached thereto or terms pursuant to which
warrants may exist;
(11) the place or places where the principal of (and premium,
if any) and interest, if any, on the Securities of such series shall be
payable;
(12) any additional offices or agencies maintained pursuant to
Section 4.03;
(13) whether the Securities of such series shall be issued as
registered Securities or as unregistered
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Securities, with or without Coupons; whether unregistered Securities may
be exchanged for registered Securities of such series and whether
registered Securities may be exchanged for unregistered Securities of
such series (if permitted by applicable laws and regulations) and the
circumstances under which and the place or places where any such
exchanges, if permitted, may be made; and whether the Securities of such
series shall be issued in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary for such Global
Security or Securities and whether any Global Securities of such series
shall be issuable initially in temporary form, and whether any Global
Securities of such series shall be issuable in definitive form, with or
without Coupons, and, if so, whether beneficial owners of interests in
any such definitive Global Security may exchange such interests for
Securities of such series and the circumstances under which and the
place or places where any such exchange may occur;
(14) if other than Dollars, the currency or currencies, or
currency unit or units in which the Securities of such Series shall be
denominated and in which payment of the principal of (and premium, if
any) and interest, if any, on any of such Securities shall be payable;
(15) if the principal of (and premium, if any) and interest, if
any, on any of the Securities of such series are to be payable at the
election of the Company or a Holder thereof or under some or all other
circumstances, in a currency or currencies, or currency unit or units
other than that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which, such
election may be made, or the other circumstances under which any of the
Securities are to be so payable, and any provision requiring the Holder
to bear currency exchange costs by deduction from such payments;
(16) if the amount of payments of principal (and premium, if
any) and interest, if any, on any of the Securities of such series may
be determined with reference to a currency, currency unit, commodity or
financial or non-financial index or indices, then the manner in which
such amounts shall be determined;
(17) whether and under what circumstances and with what
procedures and documentation the Company will pay additional amounts on
any of the Securities and Coupons, if any, of such series to any holder
who is not a U.S. Person (including a definition of such term), in
respect of any tax, assessment or
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governmental charge withheld or deducted and, if so, whether the Company
will have the option to redeem such Securities rather than pay
additional amounts (and the terms of any such option);
(18) the Person to whom any interest on any registered Security
of such series shall be payable, if other than the Person in whose name
that Security is registered at the close of business on the Record Date
for such interest, the manner in which, or the Person to whom, any
interest on any unregistered Security of such series shall be payable,
if otherwise than upon presentation and surrender of the Coupons
appertaining thereto as they severally mature, and the extent to which,
or the manner in which, any interest payable on a temporary Global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 4.02;
(19) whether Section 12.02 shall not apply to the Securities
of such series; and
(20) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series need not be issued at the same
time, and unless otherwise provided, a series may be reopened for issuance of
additional Securities of such series.
SECTION 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Securities of each series shall be substantially in the
form established by or pursuant to one or more resolutions of the Board of
Directors, with such specific terms, additions or omissions as may be
determined pursuant to an Officers' Certificate or a supplemental indenture as
contemplated in Section 2.01 hereof, in each case with such letters, numbers or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of the Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Securities may be listed, or to conform to usage. The Trustee's certificate of
authentication to be borne by such Securities shall be in the form set forth
below:
(Form of Trustee's Certificate of Authentication)
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This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-----------------------------
Authorized Signatory
SECTION 2.03. GLOBAL SECURITIES. If Securities of a series are
issuable in whole or in part as Global Securities pursuant to Section 2.01,
then, notwithstanding clause (8) of Section 2.01 and the provisions of Section
2.04, such Global Securities shall represent such of the Outstanding Securities
of such series as shall be specified therein and may provide that they shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges or
redemptions. Any endorsement of a Global Security to reflect the amount, or
any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company
Direction to be delivered to the Trustee pursuant to Section 2.04 or Section
2.07. Subject to the provisions of Section 2.04 and, if applicable, Section
2.07, the Trustee shall deliver and redeliver any Global Security in the manner
and upon written instructions given by the Person or Persons specified therein
or in the applicable Company Direction. If a Company Direction pursuant to
Section 2.04 or 2.07 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Global Security shall be in writing but need not comply with
Section 14.05 and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Sections 2.02 and 4.02, unless
otherwise specified pursuant to Section 2.01, payment of principal of (and
premium, if any) and interest, if any, on any Global Security shall be made to
the Person or Persons specified therein.
If at any time the Depositary for the Global Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Securities of such series or if at any time the
Depositary for the Global Securities of such series shall no longer be eligible
to serve as Depositary, the Company shall appoint a successor Depositary with
respect to the Global Securities of such series. If a successor Depositary for
the Global Securities of such series is not
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appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 2.01 that such Securities be represented by one or more Global
Securities shall no longer be effective with respect to the Global Securities
of such series and the Company shall execute, and the Trustee, upon receipt of
a Company Direction for the authentication and delivery of definitive
Securities of such series, shall authenticate and make available for delivery
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Securities of any series or portion thereof issued in the form of one
or more Global Securities shall no longer be represented by such Global
Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of a Company Direction for the authentication and
delivery of definitive Securities of such series in exchange for such Global
Security or Securities, will authenticate and make available for delivery
Securities of such series in definitive form and in an aggregate principal
amount equal to the principal amount of such Global Security or Securities
being exchanged.
Upon the exchange of a Global Security for Securities in
definitive form, such Global Security shall be canceled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such registered Securities to, or upon the order of, the
Persons in whose names such Securities are so registered.
Unless otherwise specified by the Company pursuant to Section
2.01, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
None of the Company, the Trustee or any agent of the Company or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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SECTION 2.04. DENOMINATION, AUTHENTICATION AND DATING OF
SECURITIES. The Securities of each series may be issued as registered
Securities or, if provided by the terms of the instrument establishing such
series of Securities, as unregistered Securities, with or without Coupons. The
Securities of each series, if registered, shall be issuable in denominations of
$ 1,000 and any integral multiple of $ 1,000, unless otherwise provided by the
terms of the instrument establishing such series of Securities. Each Security
shall be dated as of the date of its authentication.
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 Direction for authentication and delivery of such Securities, and the
Trustee shall thereupon authenticate and make available for delivery such
Securities in accordance with such Company Direction. Prior to the issuance of
Securities of any series, the Trustee shall be entitled to receive, and subject
to Section 7.01, shall be fully protected in relying upon:
(1) a Certified Board Resolution pursuant to which the
issuance of the Securities of such series is authorized;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate, if any, delivered in accordance
with Section 2.01 and an Officers' Certificate as to the absence of any
Event of Default or any event which with notice or lapse of time or both
could become an Event of Default; and
(4) at the option of the Company, one of the following: an
Opinion of Counsel or a letter addressed to the Trustee permitting the
Trustee to conclusively rely on an Opinion of Counsel, substantially to
the effect that:
(i) the form and the terms of the Securities of such
series have been established in conformity with the provisions of
this Indenture;
(ii) the Securities of such series have been duly
authorized, and, when the Securities of such series and the
Coupons, if any, appertaining thereto shall have been executed by
the Company and authenticated by the Trustee in accordance with
the provisions of this Indenture and delivered to and duly paid
for by the purchasers thereof, such Securities will have been
duly issued under this Indenture and will be valid and legally
binding obligations of the Company enforceable in accordance with
their respective terms, subject to
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bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity
or at law), and will be entitled to the benefits of this
Indenture;
(iii) no consent, approval, authorization, order,
registration or qualification of or with any governmental agency
or body having jurisdiction over the Company is required for the
execution and delivery of the Securities of such series by the
Company, except such as have been obtained, but no opinion need
be expressed as to provincial or state securities or Blue Sky
laws; and
(iv) the registration statement, if any, relating to the
Securities of such series and any amendments thereto has become
effective under the Securities Act, and to the best knowledge of
such counsel, no stop order suspending the effectiveness of such
registration statement, as amended, has been issued and no
proceeding for that purpose have been instituted or threatened;
In addition, such Opinion of Counsel shall address such other
matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of such series (A) if a Responsible Officer of the
Trustee, being advised by counsel, determines that such action may not lawfully
be taken; or (B) if the Trustee in good faith shall determine that such action
would expose the Trustee to personal liability to Holders of Outstanding
Securities of any series.
So long as there is no existing default in the payment of
interest on registered Securities of any series, all such Securities
authenticated by the Trustee after the close of business on the Record Date for
the payment of interest on any Interest Payment Date relating to such Record
Date and prior to such Interest Payment Date shall bear interest from such
Interest Payment Date; provided, however, that if and to the extent that the
Company shall default in the interest due on such Interest Payment Date, then
any such Securities shall bear interest from the next preceding Interest
Payment Date relating to such Security with respect to which interest has been
paid or duly provided for on such Securities, or if no interest has been paid
or duly provided for on such Securities, from the date from which interest
shall accrue as such date is set forth in the instrument establishing the terms
of such Securities.
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The Person in whose name any Security is registered at the close
of business on any Record Date with respect to any Interest Payment Date shall
be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any registration and
transfer or exchange thereof subsequent to such Record Date and prior to such
Interest Payment Date, except if and to the extent the Company shall default in
the payment of the interest due on such Interest Payment Date, in which case
such defaulted interest (herein called "Defaulted Interest") shall be paid to
the Persons in whose names outstanding Securities of such series are registered
at the close of business on a subsequent record date, which shall not be less
than five Business Days preceding the date of payment of such Defaulted
Interest established for such purpose by notice given by mail by or on behalf
of the Company to Holders of such Securities not less than 15 days preceding
such subsequent record date. Such notice shall be given to the Persons in
whose names such Outstanding Securities of such series are registered at the
close of business on the third business day preceding the date of the mailing
of such notice.
SECTION 2.05. EXECUTION OF SECURITIES. The Securities and
Coupons appertaining thereto, if any, shall be signed on behalf of the Company
by its Chairman, President, Chief Executive Officer, any Executive Vice
President, Senior Vice President or Vice President and by its Secretary or any
Assistant Secretary under its corporate seal. Such signatures may be the
manual or facsimile signatures of the present or any future such authorized
officers and may be imprinted or otherwise reproduced on the Securities and
such Coupons. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities and such Coupons.
Only such Securities as shall bear thereon a Trustee's
certificate of authentication substantially in the form provided in Section
2.04 (or Section 2.12, if applicable), signed manually by the Trustee, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. The Trustee's certificate of authentication on any Security executed
by the Company shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any of
the Securities or such Coupons shall cease to be such officer before the
Securities or such Coupons so signed shall have been authenticated by the
Trustee and delivered or disposed of by the Company, such Securities and such
Coupons nevertheless may be authenticated and delivered or disposed of as
though the officer who signed such Securities and such Coupons had not ceased
to be such officer of the Company; and any
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Security or such Coupons may be signed on behalf of the Company by such Persons
as, at the actual date of the execution of such Security or such Coupons, shall
be the proper officers of the Company, although at the date of such Security or
such Coupons or of the execution of this Indenture any such Person was not such
officer.
SECTION 2.06. REGISTRATION OF TRANSFER AND EXCHANGE. The
Company shall keep, at an office or agency maintained by the Company in
accordance with the provisions of Section 4.03, a register for each series of
registered Securities (such register being herein referred to as the "Security
Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall register Securities of such series and shall
register the transfer of such Securities as in this Article Two provided. At
all reasonable times the Security Register shall be open for inspection by the
Trustee. Subject to Sections 2.01 and 2.03, upon due presentment for
registration of transfer of any such Security at such office or agency, or such
other offices or agencies as the Company may designate, the Company shall
execute and the Trustee shall authenticate and make available for delivery in
the name of the transferee or transferees a new Security or Securities of
authorized denominations, of the same series and of like aggregate principal
amount at Stated Maturity.
Unless and until otherwise determined by or pursuant to one or
more resolutions of the Board of Directors, the Security Register for the
purpose of registration, exchange or registration of transfer of registered
Securities shall be kept at the Corporate Trust Office and, for this purpose,
the Trustee shall be designated the "Security Registrar".
Subject to Sections 2.01 and 2.03, at the option of the Holder,
Securities of any series may be exchanged for Securities of the same series of
like aggregate principal amount at Stated Maturity and of other authorized
denominations. Securities to be so exchanged shall be surrendered at the
offices or agencies to be maintained by the Company as provided in Section
4.03, and the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor the Security or Securities which
the Holder making the exchange shall be entitled to receive.
All Securities presented or surrendered for registration of
transfer, exchange, redemption or payment shall (if so required by the Company
or the Security Registrar) be duly endorsed or be accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Company and
the Security Registrar, duly executed by the Holder or his attorney duly
authorized in writing.
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No service charge shall be made for any exchange or registration
of transfer 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
relation thereto.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Securities of any series for a period of 15 days
next preceding the mailing of a notice of redemption of Securities of such
series to be redeemed, or (b) to register the transfer of or exchange any
Securities of such series selected, called or being called for redemption in
whole or in part except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed.
SECTION 2.07. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute and make available for delivery
and the Trustee, upon Company Direction, shall authenticate and make available
for delivery temporary Securities (printed, lithographed, or typewritten), of
any authorized denomination, and substantially in the form of the definitive
Securities, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Temporary Securities may be issued without a recital of the specific redemption
prices, if any, applicable to such Securities, and may contain such reference
to any provisions of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Securities. The Company shall execute and furnish
definitive Securities as soon as practicable and thereupon any or all temporary
Securities may be surrendered in exchange therefor at the Corporate Trust
Office, and the Trustee shall authenticate and make available for delivery in
exchange for such temporary Securities a like aggregate principal amount at
Stated Maturity of definitive Securities of the same series. Until so
exchanged, the temporary Securities shall be entitled to the same benefits
under this Indenture as definitive Securities authenticated and delivered
hereunder.
SECTION 2.08. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.
In case any temporary or definitive Security and, in the case of a definitive
Security, Coupons appertaining thereto, if any, shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
a Company Direction the Trustee shall authenticate and make available for
delivery, a new Security or such Coupons of the same series bearing a number
not contemporaneously Outstanding, in exchange and substitution for the
mutilated Security or such Coupons, or in lieu of and in substitution for the
Security or such Coupons so destroyed, lost or stolen. In every case, the
applicant for a substituted Security or such Coupons shall furnish to the
Company
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and to the Security Registrar and any paying agent, such security or indemnity
as may be required by them to save each of them harmless from all risk, however
remote, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Security Registrar and any paying agent,
evidence to their satisfaction of the destruction, loss or theft of such
Security or such Coupons and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon Company
Direction. Upon the issuance of any substituted Security or such Coupons, 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 connected therewith. In case any Security which has matured or is
about to mature or which has been called for redemption shall become mutilated
or be destroyed, lost or stolen, the Company may, instead of issuing a
substituted Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Security) if the applicant
for such payment shall furnish the Company and any paying agent with such
security or indemnity as either may require to save it harmless from all risk,
however remote, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company of the destruction, loss or theft of such Security
and of the ownership thereof.
Every substituted Security of any series or Coupon issued
pursuant to the provisions of this Section 2.08 by virtue of the fact that any
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security or Coupon shall be found at any time, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of such series or Coupons duly issued and delivered hereunder.
All Securities and Coupons shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and Coupons, and
shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.09. CANCELLATION OF SURRENDERED SECURITIES. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, and all Coupons surrendered for payment, shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee for cancellation by
it, or, if surrendered to the Trustee, shall be canceled by it, and all
Securities delivered to the Trustee in discharge or satisfaction in whole or in
part of any Sinking Fund payment (referred to in Section 3.04) shall be
canceled by the Trustee and no Securities
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shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. By a Company Request the Trustee shall deliver
to the Company canceled Securities and Coupons held by the Trustee. If the
Company shall acquire any of the Securities or Coupons, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness or rights represented by such Securities or Coupons unless and
until the same are delivered or surrendered to the Trustee for cancellation.
SECTION 2.10. PROVISIONS OF INDENTURE AND SECURITIES FOR THE
SOLE BENEFIT OF THE PARTIES AND THE HOLDERS. Nothing in this Indenture or in
the Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto and the Holders, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained, all its covenants,
conditions and provisions being for the sole benefit of the parties hereto and
the Holders.
SECTION 2.11. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 2.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 2.12. AUTHENTICATING AGENTS. The Trustee shall, if
requested pursuant to a Company Request, promptly appoint an agent or agents of
the Trustee who shall have authority to authenticate Securities of any series
in the name and on behalf of the Trustee. Such appointment by the Trustee
shall be evidenced by a certificate executed by a Responsible Officer of the
Trustee delivered to the Company prior to the effectiveness of such appointment
designating such agent or agents and stating that all appropriate corporate
action has been taken by the Trustee in connection with such appointment.
Wherever reference is made in this Indenture to the authentication of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication on behalf of the Trustee by
an authenticating agent and a certificate of authentication executed on behalf
of the Trustee by an authenticating agent.
Any such authenticating agent shall be an agent acceptable to the
Company and shall at all times be a corporation which is organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to act as authenticating agent, having a combined
capital and surplus of at least $1,000,000, and subject to supervision or
examination by federal or state authority.
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An authenticating agent may at any time resign with respect to
one or more series of Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency
of an authenticating agent with respect to one or more series of Securities by
giving written notice of termination to such authenticating agent and to the
Company. Upon receiving such notice of resignation or upon such termination,
or in case at any time an authenticating agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee promptly may
appoint a successor authenticating agent. 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 herein. 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 Section.
The provisions of Sections 7.03, 7.04 and 7.05 shall be
applicable to any authenticating agent.
Pursuant to each appointment of an authenticating agent made
under this Section, the Securities of each series covered by such appointment
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
(ALTERNATE FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION)
This is one of the Securities of the series designated herein
referred to in the Indenture.
THE BANK OF NEW YORK,
as Trustee
By
----------------------------------
Authenticating Agent
By
----------------------------------
Authorized Signatory
SECTION 2.13. COMPLIANCE WITH CERTAIN LAWS AND REGULATIONS. If
any unregistered Securities are to be issued in any series of Securities, the
Company shall use reasonable
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efforts to provide for arrangements and procedures designed pursuant to then
applicable laws and regulations, if any, to ensure that such unregistered
Securities are sold or resold, exchanged, transferred and paid only in
compliance with such laws and regulations and without adverse consequences to
the Company, the Holders and the Trustee.
SECTION 2.14. MEDIUM-TERM SECURITIES. Notwithstanding any
contrary provision herein, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the Company
Direction, Officers' Certificate, supplemental indenture or Opinion of Counsel
otherwise required pursuant to Sections 2.01, 2.03, 2.04, 2.07 and Section
14.05 at or prior to the time of authentication of each Security of such series
if such documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued; provided that any
subsequent direction by the Company to the Trustee to authenticate Securities
of such series upon original issuance shall constitute a representation and
warranty by the Company that as of the date of such direction, the statements
made in the Officers' Certificate or supplemental indenture delivered pursuant
to Section 2.01 shall be true and correct as if made on such date.
An Officers' Certificate or supplemental indenture, delivered
pursuant to this Section 2.14 in the circumstances set forth in the preceding
paragraph, may provide that Securities which are the subject thereof will be
authenticated and delivered by the Trustee on original issue from time to time
upon the telephonic or written order of Persons designated in such Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such Person) and that such Persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities as are
specified in such Officers' Certificate or supplemental indenture.
SECTION 2.15. CUSIP NUMBERS. The Company in issuing the
Securities of any series 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 such Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other indemnification numbers printed on
such Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers. The Company will promptly notify the Trustee of
any change in the "CUSIP" numbers.
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ARTICLE THREE
REDEMPTION OF SECURITIES - SINKING FUND
SECTION 3.01. APPLICABILITY OF ARTICLE. The Company may become
obligated, or reserve the right, to redeem and pay, prior to Stated Maturity,
all or any part of the Securities of any series, either by optional redemption,
Sinking Fund or otherwise, by provision therefor in the instrument establishing
such series of Securities pursuant to Section 2.01 or in the Securities of such
series. Redemption of any series shall be made in accordance with the terms of
such Securities and to the extent that this Article does not conflict with such
terms, in accordance with this Article.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF SECURITIES. In
case the Company shall be obligated, or shall exercise the right, to redeem
Securities as provided for in the first sentence of Section 3.01, it shall fix
a date for redemption (unless, by the terms of the instrument establishing such
series of Securities or the terms of such Securities, such date is fixed) and
the Company, or, upon a Company Request the Trustee, in the name of and at the
expense of the Company, shall give notice of such redemption to the Holders of
the Securities to be redeemed as a whole or in part, with respect to registered
Securities, by mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to their last addresses as
they shall appear upon the Security Register and, with respect to unregistered
Securities, by publishing in an Authorized Newspaper notice of such redemption
on two separate days, each of which is not less than 30 nor more than the 60
days prior to the date fixed for redemption. Any notice which is mailed or
published, as the case may be, in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
actually receives such notice. In any case, failure duly to give notice by
mail, or any defect in the notice, to the Holder of any registered Security of
any series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impractical to mail notice of any event to
Holders of registered Securities when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Each such notice of redemption shall specify the designation of
the series of the Securities to be redeemed (including CUSIP numbers), the date
fixed for redemption and the
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redemption price at which Securities are to be redeemed, and shall state that
payment of the redemption price of the Securities or portions thereof to be
redeemed will be made at the offices or agencies to be maintained by the
Company in accordance with the provisions of Section 4.03 upon presentation and
surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in such notice, and that, on and after
such date, interest thereon or on the portions thereof to be redeemed will
cease to accrue. If less than all the Securities of any series are to be
redeemed, the notice to the Holders of Securities to be redeemed shall specify
the Securities to be redeemed. In case any Security is to be redeemed in part
only, such notice shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, upon surrender
of such Security, a new Security or Securities of the same series in authorized
denominations and in a principal amount at Stated Maturity equal to the
unredeemed portion thereof will be issued.
If less than all the Securities of like tenor and terms of any
series are to be redeemed, the Company shall give the Trustee written notice,
at least 60 days (or such shorter period acceptable to the Trustee) in advance
of the date fixed for redemption, as to the aggregate principal amount at
Stated Maturity of Securities of such series to be redeemed, which shall be an
integral multiple of the minimum authorized denomination of such series, and
thereupon the Trustee shall select, in such manner as it shall deem appropriate
and fair, the Securities of such series to be redeemed in whole or in part and
shall thereafter promptly notify the Company in writing of the numbers of the
Securities so to be redeemed and, in the case of Securities to be redeemed in
part only, the principal amount at Stated Maturity so to be redeemed. If less
than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Company, and the Company shall notify the Trustee in writing thereof at least
45 days before the relevant redemption date.
SECTION 3.03. WHEN SECURITIES CALLED FOR REDEMPTION BECOME DUE
AND PAYABLE. If the giving of notice of redemption shall have been completed
as provided in Section 3.02, the Securities or portions of Securities specified
in such notice shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after such date fixed for
redemption (unless the Company shall default in the payment of such Securities
at the redemption price, together with interest accrued to the date fixed for
redemption) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue. On presentation and surrender of such
Securities on or after the date fixed for
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redemption at the place of payment specified in such notice, such Securities
shall be paid and redeemed by the Company at the applicable redemption price,
together with interest accrued to the date fixed for redemption; provided,
however, that installments of interest becoming due on the date fixed for
redemption on Securities which are in registered form shall be payable to the
Holders of such Securities or of one or more previous such Securities
evidencing all or a portion of the same debt as that evidenced by such
particular Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 2.04.
Upon presentation of any Security which is redeemed in part only,
the Company shall execute and the Trustee shall authenticate and make available
for delivery to the Holder of such Security, at the expense of the Company, a
new Security or Securities of the same series in authorized denominations and
in a principal amount at Stated Maturity equal to the unredeemed portion of the
Security so presented.
SECTION 3.04. SINKING FUND. In the event that the instrument
establishing the terms of a particular series shall provide for a Sinking Fund,
the Company covenants that as and for a Sinking Fund for the redemption of
Securities of such series, so long as any of the Securities of such series are
Outstanding:
(a) It will pay to the Trustee or to a paying agent (or, if
the Company is acting as its own paying agent, segregate and hold in
trust as provided in Section 4.05) on or before each date set forth as a
Sinking Fund payment date in the instrument establishing such series, a
sum in cash sufficient to retire on each such date, at the Sinking Fund
redemption price provided for in such instrument and upon the
conditions, if any, applicable thereto as specified in such instrument,
the principal amount of such Securities as specified in such instrument.
Each such date is herein called a "Sinking Fund payment date", and each
sum payable as provided in this paragraph (a) is herein called a
"mandatory Sinking Fund payment".
(b) If the instrument establishing any series of Securities so
provides, the Company may elect to pay to the Trustee or to a paying
agent (or, if the Company is acting as its own paying agent, segregate
and hold in trust as provided in Section 4.05) on or before any Sinking
Fund payment date with respect to a particular series of Securities, an
additional sum in cash sufficient to retire on such Sinking Fund payment
date, at the Sinking Fund redemption price, up to any additional
principal amount of Securities set forth in
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such instrument. Any sum payable as provided in this paragraph (b) is
herein called an "optional Sinking Fund payment". Any such election by
the Company shall be evidenced by an Officers' Certificate (which shall
conform to Section 14.05), delivered to the Trustee not later than 60
days (or such shorter period acceptable to the Trustee) preceding such
Sinking Fund payment date, which Officers' Certificate shall set forth
the amount of the optional Sinking Fund payment which the Company then
elects to pay. The Company's election, so evidenced, shall be
irrevocable and the Company shall, upon delivery of such Officers'
Certificate to the Trustee, become bound to pay or segregate and hold in
trust as aforesaid on or before such Sinking Fund payment date the
amount specified in such Officers' Certificate. Unless otherwise
provided in the instrument establishing such series, any such right to
make an optional Sinking Fund payment shall be noncumulative and shall
in no event relieve the Company of its obligation set forth in paragraph
(a) of this Section 3.04.
All moneys paid or segregated and held in trust pursuant to this
Section 3.04 shall be applied on the Sinking Fund payment date in respect of
which such payment or segregation was made, to the redemption of Securities as
provided in this Article Three.
SECTION 3.05. USE OF ACQUIRED SECURITIES TO SATISFY SINKING FUND
OBLIGATION. In lieu of making all or any Sinking Fund payment in cash as may
be required by Section 3.04(a), the Company may, not later than 60 days (or
such shorter period acceptable to the Trustee) preceding any applicable Sinking
Fund payment date relating to a particular series of Securities, deliver to the
Trustee for cancellation Securities of such series theretofore acquired by the
Company (otherwise than through the use of Sinking Fund moneys pursuant to
Section 3.07) and not theretofore made the basis for the reduction of any
Sinking Fund payment with respect to such series, accompanied by an Officers'
Certificate (which shall conform to Section 14.05) stating the Company's
election to use such Securities to reduce the amount of such Sinking Fund
payment with respect to such series (specifying the amount of the reduction of
each such payment) and certifying that such Securities have not theretofore
been made the basis for a reduction of any Sinking Fund payment with respect to
such series. Securities so delivered shall be credited against the Sinking
Fund payment due on such Sinking Fund payment date at the Sinking Fund
redemption price thereof.
SECTION 3.06. EFFECT OF FAILURE TO DELIVER OFFICERS' CERTIFICATE
OR SECURITIES. In case of a failure of the Company, at or before the time
provided in Section 3.05, to deliver an
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Officers' Certificate, together with any Securities of the particular series
required by Section 3.05, the Company shall not be permitted to make any such
reduction of the amount of the Sinking Fund payment with respect to such series
payable on such Sinking Fund payment date.
SECTION 3.07. MANNER OF REDEEMING SECURITIES. The Securities of
any series to be redeemed from time to time through the operation of any
Sinking Fund relating to such series, as in Section 3.04 provided, shall be
selected by the Trustee for redemption in the manner provided in Section 3.02
and notice thereof shall be given by the Trustee to the Company, and the
Company hereby irrevocably authorizes the Trustee, in the name of and at the
expense of the Company, to give notice on behalf of the Company of the
redemption of such Securities, all in the manner and with the effect in this
Article Three specified, except that, in addition to the matters required to be
included in such notice by Section 3.02, such notice shall also state that the
Securities therein designated for redemption are to be redeemed through
operation of such Sinking Fund. Such Securities shall be so redeemed and paid
in accordance with such notice in the manner and with the effect provided in
Sections 3.02 and 3.03.
Notwithstanding the foregoing, if at any time the amount of cash
to be paid into any Sinking Fund with respect to a particular series of
Securities on any next succeeding Sinking Fund payment date for such series,
together with any unused balance of any preceding Sinking Fund payment or
payments with respect to such series which shall not, in any case, include
funds held by the Trustee for Securities of such series which previously have
been called for redemption, shall not exceed in the aggregate $100,000, the
Trustee, unless requested by the Company, shall not select Securities for or
give notice of the redemption of Securities through the operation of the
Sinking Fund with respect to such series on the next succeeding Sinking Fund
payment date. Such unused balance of moneys deposited in the Sinking Fund with
respect to a particular series of Securities shall be added to the next Sinking
Fund payment for such series to be made in cash or, at the request of the
Company, shall be applied at any time or from time to time to the purchase of
Securities of such series, by public or private purchase, in the open market or
otherwise.
SECTION 3.08. SINKING FUND MONEYS TO BE HELD AS SECURITY DURING
CONTINUANCE OF EVENT OF DEFAULT; EXCEPTIONS. Unless all Securities of any
series then Outstanding are to be redeemed, neither the Trustee nor any paying
agent shall redeem any Securities of such series with Sinking Fund moneys if a
Responsible Officer of the Trustee or such paying agent at the time shall have
actual knowledge of the continuance of any Event of Default with respect to
such series, except that where the
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mailing or publication of notice of redemption of any such Securities shall
theretofore have been made, the Trustee or any paying agent, if sufficient
funds shall have been deposited with it for such purpose, shall redeem such
Securities. However, the Company itself shall not redeem any such Securities
with Sinking Fund moneys during the continuance of any Event of Default with
respect to such series. The Trustee shall not mail or publish any notice of
redemption if a Responsible Officer of the Trustee at the time shall have
actual knowledge of the continuance of any Event of Default with respect to
such series. Except as aforesaid, any moneys in the Sinking Fund with respect
to such series at such time and any moneys thereafter paid into the Sinking
Fund shall during such continuance be held as security for the payment of all
Securities of that series; provided, however, that in case such Event of
Default with respect to such series shall have been waived as permitted by this
Indenture or otherwise cured, such moneys shall thereafter be held and applied
in accordance with the provisions of this Article Three.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. EXISTENCE. Subject to Article XI, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its 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 Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 4.02. PAYMENTS OF PRINCIPAL OF (AND PREMIUM, IF ANY) AND
INTEREST, IF ANY, ON SECURITIES. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest, if any,
on Securities of each series at the place, at the time or times and in the
manner provided in the instrument establishing such series and in the
Securities of such series. The interest on the Securities, if any, shall be
payable (subject to the provisions of Section 2.04) only to or upon the written
order of the Holders thereof or, in the case of unregistered Securities with
Coupons, the Holders of Coupons relating thereto. Any installment of interest
on registered Securities of any series may at the Company's option be paid by
mailing checks for such interest payable to or upon the written order of the
Person entitled thereto pursuant to Section 2.04 to the address of such Person
as it appears on the Security Register or by wire transfer to an account
designated in writing by such Person at least 15 days prior to the relevant
payment date.
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SECTION 4.03. MAINTENANCE OF OFFICES OR AGENCIES FOR
REGISTRATION OF TRANSFER, EXCHANGE AND PAYMENT OF SECURITIES. As long as any
of the Securities of any series remain Outstanding, the Company will maintain
one or more offices or agencies in St. Louis, Missouri or New York, New York,
or at such other locations as the Company may from time to time designate for
any series of Securities, where such Securities may be presented for
registration of transfer and exchange as in this Indenture provided, where such
Securities may be presented for payment and where notices and demands to or
upon the Company in respect of such Securities or of this Indenture may be
served. The Trustee shall be the agent of the Company in the city in which the
Corporate Trust Office is located for all of the foregoing purposes unless the
Company shall designate and maintain some other office and agency for such
purposes and give the Trustee written notice of the location thereof. The
Company will give to the Trustee notice of the location of each such office or
agency and of any change of location thereof.
SECTION 4.04. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF
TRUSTEE. The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee for any one or more series of Securities, will appoint, in
the manner provided in Section 7.11, a Trustee, so that there shall at all
times be a Trustee with respect to each series of Securities hereunder.
SECTION 4.05. DUTIES AND RIGHTS OF PAYING AGENTS; COMPANY AS
PAYING AGENT. (a) The Company shall cause each paying agent, if any, other
than the Trustee, for any series of Securities, to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 4.05, that such agent will:
(1) hold all sums held by it as such agent for the payment of
the principal of (and premium, if any) or interest on the Securities of
such series (whether such sums have been paid to it by the Company or by
any other obligor on the Securities of such series) in trust for the
benefit of the Holders of the Securities of such series;
(2) give the Trustee notice of any default by the Company (or
by any other obligor on the Securities of such series) in making any
payment of the principal of (or premium, if any) or interest on the
Securities of such series when the same shall be due and payable; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held by it as such agent.
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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 Securities of such series, deposit with
such paying agent or agents a sum sufficient to pay such principal (and
premium, if any) or interest on such Securities so becoming due.
(b) If the Company shall act as its own paying agent for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series a sum sufficient to pay such principal (and premium, if any) or
interest on such Securities so becoming due. The Company will promptly notify
the Trustee of any failure by the Company to take such action or the failure by
any other obligor on the Securities of such series to make any payment of the
principal of (or premium, if any) or interest on the Securities of such series
when the same shall be due and payable.
(c) Anything in this Section 4.05 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by the Company or any
paying agent hereunder, as required by this Section 4.05, 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.
(d) Anything in this Section 4.05 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this
Section 4.05 is subject to the provisions of Sections 12.04 and 12.05.
SECTION 4.06. LIMITATION ON LIENS. Subject to the provisions of
Article Twelve (to the extent they are applicable to the Securities of any
series), the Company will not, nor will the Company permit any Restricted
Subsidiary to, issue, assume or guarantee any notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed (hereinafter, "Debt")
secured by a mortgage, security interest, lien, pledge or other encumbrance
(hereinafter, "liens") upon any Principal Property or upon any shares of stock
or indebtedness of any Restricted Subsidiary (whether such Principal Property,
shares of stock or indebtedness are now owned or hereafter acquired) without in
any such case effectively providing concurrently with such issuance,
assumption, or guarantee that the Securities (together with, if the Company so
determines, any other indebtedness or obligation then existing and any other
indebtedness or obligation, thereafter created, ranking equally with the
Securities) shall be secured equally and ratably with (or prior to) such Debt
so long
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as such Debt shall be so secured, except that the foregoing provisions shall
not apply to:
(a) Liens affecting property of a corporation, association or
other business entity existing at the time it becomes a Subsidiary or at
the time it is merged into or consolidated with or purchased by the
Company or a Subsidiary;
(b) Liens existing at the time of acquisition of the property
affected thereby or incurred to secure payment of all or part of the
purchase price of such property or to secure Debt incurred prior to, at
the time of or within 180 days after the acquisition of such property
for the purpose of financing all or part of the purchase price thereof
(provided such liens are limited to such property and improvements
thereon);
(c) Liens placed within 180 days of completion of construction
of property, plants or facilities to secure all or part of the cost of
construction of such property, plants or facilities, or to secure Debt
incurred to provide funds for any such purpose;
(d) Liens which secure indebtedness owing by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary;
(e) Liens existing on the date of this Indenture;
(f) Liens arising by reason of mortgages on property owned or
leased by the Company or a Restricted Subsidiary in favor of the United
States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of America
or any State thereof, or in favor of any other country or any political
subdivision thereof, or in favor of holders of securities issued by any
such entity, pursuant to any contract or statute (including, without
limitation, mortgages or liens to secure pollution control or industrial
revenue bonds or similar financings) or to secure any indebtedness
incurred or guaranteed for the purpose of financing all or any part of
the purchase price or the cost of construction of the property subject
to such mortgages;
(g) Mechanics', materialmen's, carriers', workmen's, vendors'
or other like liens, arising in the ordinary course of business in
respect of obligations which are not past due or which are being
contested in good faith;
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(h) Liens arising by reason of any deposit with, or the giving
of any form of security to (i) any surety company or clerk of any court,
or in escrow, as collateral in connection with, or in lieu of, any bond
or appeal from any judgment or decree against the Company or a
Restricted Subsidiary, or in connection with other proceedings or
actions at law or in equity by or against the Company or a Restricted
Subsidiary, or (ii) any government or governmental department, agency or
instrumentality, which deposit or security is required or permitted to
qualify the Company or a Restricted Subsidiary to conduct business (or
perform any contract with such entities), to maintain self-insurance, or
to obtain the benefit of, or comply with, any law pertaining to workers'
compensation, unemployment insurance, old age pensions, social security,
or similar matters;
(i) Liens existing on property acquired by the Company or a
Restricted Subsidiary through the exercise of rights arising out of
defaults on receivables acquired in the ordinary course of business;
(j) Liens for judgments or awards, so long as the finality of
any such judgment or award is being contested in good faith and
execution thereon is stayed;
(k) Liens for taxes or assessments or governmental charges or
levies not yet past due or delinquent or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established, if appropriate; and any other liens of a nature
substantially similar to those described in this clause (k) which do not
materially impair the use of such property in the operation of the
business of the Company and its Restricted Subsidiaries taken as a whole
or the value of such property for the purposes of such business;
(l) Liens on receivables and general intangibles securing
capitalized lease obligations incurred by the Company or any Restricted
Subsidiary; or
(m) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien
referred to in the foregoing clauses (a) to (l) inclusive or of any Debt
secured thereby, provided that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt so secured at the
time of such
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extension, renewal or replacement, and that such extended, renewed or
replacement lien shall be limited to all or part of the same property
which secured the lien extended, renewed or replaced (plus improvements
on such property).
The covenant contained in this Section will be subject to the
provision for exempted indebtedness in Section 4.08.
SECTION 4.07. LIMITATION ON SALE AND LEASE-BACK. Subject to the
provisions of Article Twelve (to the extent they are applicable to the
Securities of any series), the Company will not, nor will it permit any
Restricted Subsidiary to, enter into any arrangement with any Person providing
for the leasing by the Company or any Restricted Subsidiary of any Principal
Property, which Principal Property has been or is to be sold or transferred by
the Company or such Restricted Subsidiary to such Person (whether such
Principal Property is now owned or hereafter acquired), except for (i)
temporary leases for a term, including any renewal, of not more than three
years, (ii) leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries and (iii) leases entered into within 180 days after the
completion of construction and commencement of full operation of a Principal
Property (hereinafter, a "Sale and Lease Back Transaction"), unless either (a)
the Company or such Restricted Subsidiary would be entitled, in accordance with
the provisions of Section 4.06 (other than provisions with respect to exempted
indebtedness), to incur Debt secured by a lien on such property without equally
and ratably securing the Securities, or (b) the Company within 180 days after
the effective date of the Sale and Lease-Back Transaction applies an amount
equal to the Value of such transaction to the voluntary retirement of its
Funded Debt. For the purposes of this Article, "Value" shall mean an amount
equal to the greater of the net proceeds of the sale or transfer of the
property leased pursuant to such Sale and Lease-Back Transaction, or the fair
value in the opinion of the Board of Directors of the leased property at the
time of entering into such Sale and Lease-Back Transaction. For the purposes
of this Article, "Funded Debt" shall mean indebtedness (including Securities)
maturing by the terms thereof more than one year after the original creation
thereof.
The covenant contained in this Section will be subject to the
provision for exempted indebtedness in Section 4.08.
SECTION 4.08. EXEMPTED INDEBTEDNESS. Notwithstanding the
provisions contained in Sections 4.06 and 4.07, the Company and its Restricted
Subsidiaries may issue, assume, suffer to exist or guarantee Debt which would
otherwise be subject to the limitation of Section 4.06, without securing the
Securities, or may enter into Sale and Lease-Back Transactions which would
otherwise be subject to the limitation of Section 4.07, without
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retiring Funded Debt, or enter into a combination of such transactions, if the
sum of (i) the principal amount of all such Debt incurred after the date
hereof, and which would otherwise be or have been prohibited by the limitations
of Section 4.06 or 4.07 and (ii) the aggregate Value of all such Sale and
Lease-Back Transactions after the date hereof does not at any such time exceed
15% of the Consolidated Net Tangible Assets.
SECTION 4.09. ANNUAL CERTIFICATE OF COMPLIANCE. On or before
April 30 in each year (commencing April 30, 1999), the Company will furnish the
Trustee with an officers' certificate (executed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company and by the Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company), covering the period during the preceding
year that any Securities were Outstanding, certifying that after reasonable
investigation and inquiry the Company has complied with all conditions and
covenants contained in this Indenture or, if such is not the case, setting
forth with reasonable particularity the circumstances of any failure so to
comply and the steps taken or proposed to be taken to eliminate such failure.
Such determination shall be made without regard to periods of grace or notice
requirements.
SECTION 4.10. FURTHER INSTRUMENTS AND ACTS. The Company will,
upon request of the Trustee, execute and deliver such further instruments and
do such further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture, including Sections 4.06 and 4.07.
SECTION 4.11. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The
Company shall file with the Trustee promptly at the end of each calendar year
(i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities
as of the end of such year and (ii) such other specific information relating
to such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time.
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO NAMES
AND ADDRESSES OF HOLDERS. The Company will furnish or cause to be furnished to
the Trustee:
(1) semi-annually, not later than January 1 and July 1 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and
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addresses of the Holders of registered Securities of each series as of
the preceding December 15 or June 15, as the case may be; and
(2) 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 in similar form and content as of a date not more than 15 days
prior to the date such list is furnished;
provided, however, that so long as the Trustee shall be the Security Registrar
for any series and all of the Securities of such series are registered
Securities, no such list shall be required to be furnished with respect to such
series.
SECTION 5.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
registered Securities of each series (i) contained in the most recent list
furnished to it as provided in Section 5.01, (ii) received by it in the
capacity of Security Registrar for such series, if so acting, and (iii) filed
with it within the two preceding years pursuant to Section 5.04 (c)(ii). The
Trustee may destroy any list furnished to it with respect to Securities of any
Series as provided in Section 5.01 upon receipt of a new list with respect to
such series so furnished.
(b) If three or more Holders (in this Section referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with the other
Holders of the Securities of a particular series (in which case the applicants
must all hold Securities of such series) or with the Holders of the Securities
of all series with respect to their rights under this Indenture or under such
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 5.02(a), or
(ii) inform such applicants as to the approximate number of
Holders of registered Securities of such series or of all registered
Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
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Section 5.02(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of registered Securities of such series or to
each Holder of registered Securities of all series, as the case may be, whose
name and address shall appear in the information preserved at the time by the
Trustee in accordance with Section 5.02(a), a copy of the form of proxy or
other communication which is specified in such request with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
proposed to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interests of the
Holders of registered Securities of such series or of all series, as the case
may be, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of the Securities and the Coupons, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with Section 5.02(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 5.02(b).
SECTION 5.03. REPORTS BY COMPANY. The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of
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any of the foregoing as the Commission may from time to time by rules
and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or if the Company is not
required to file information, documents or reports pursuant to either of
such sections, then it shall file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended, in respect of a debt
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to all Holders, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent
provided in Section 5.04, such summaries of any information, documents
and reports required to be filed by the Company pursuant to clauses (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 5.04. REPORTS BY TRUSTEE. (a) 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 April 15 following the date of this Indenture deliver to Holders a brief
report, dated as of such April 15, which complies with the provisions of such
Section 313(a).
(b) The Trustee shall comply with Sections 313(b) and 313(c)
of the Trust Indenture Act.
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(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
ARTICLE SIX
REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. "Event of Default," wherever
used herein with respect to the Securities of any series, means any one of the
following events which shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any of the
Securities of such series when and as the same shall become due and
payable, and continuance of such default for a period of 30 days;
(2) default in the payment of all or any part of the principal
of (or premium, if any, on) any of the Securities of such series at its
Maturity;
(3) default in the deposit of any sinking fund or analogous
payment for the benefit of the Securities of such series when and as the
same shall become due and payable;
(4) default in the performance, or breach, of any covenant or
warranty of the Company in the Securities of such series or in this
Indenture (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
provided for or which has expressly been included in this Indenture
solely for the benefit of the Securities of other series), and
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of not less
than 25% in aggregate principal amount of the Securities of all series
then Outstanding affected thereby a written notice specifying such
default or breach, requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
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(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 Bankruptcy Law or
(B) a decree or order adjudging the Company a bankrupt or insolvent, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of all or
substantially all 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 unstated and in
effect for a period of 90 consecutive days;
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Bankruptcy Law 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 Bankruptcy Law,
or the consent by it to the appointment of or the taking of possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of all or substantially all of
its property, or the making by the Company of a general assignment for
the benefit of creditors;
(7) default under any indenture or instrument that evidences
or under which the Company or any Restricted Subsidiary has at the date
of this Indenture or shall hereafter have outstanding any indebtedness
for money borrowed having unpaid principal at the time of such default
in excess of the greater of $15,000,000 or 5% of the Consolidated Net
Worth of the Company, shall occur and be continuing and such
indebtedness shall have been accelerated, by action of the holder or
holders thereof or any Person duly acting on their behalf, so that the
same shall be or become due and payable prior to the date on which the
same would otherwise have become due and payable; provided, however,
that such acceleration shall not have been rescinded or annulled; and
provided, further, that if such default under such indenture or
instrument shall be remedied or cured by the Company or waived by the
holders of such indebtedness, then the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of either the
Trustee or any of the Holders; or
(8) any other Event of Default provided in or pursuant to the
supplemental indenture or Officers' Certificate establishing the terms
of such series of
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Securities as provided in Section 2.01 or in the form or forms of
Security for such series.
SECTION 6.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default described in Section 6.01 shall have
occurred and be continuing with respect to the Securities of any series, then,
and in each and every such case, unless the principal of all of the Securities
of such series shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding, by notice in writing to the Company
(and to the Trustee if given by such Holders), may declare the entire principal
of (and premium, if any, on) all the Securities of such series then Outstanding
and the interest accrued thereon to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The preceding paragraph is subject, however, to the condition
that if, at any time after the principal of the Securities of one or more
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series and the principal of (and premium, if any, on) all
the Securities of such series which shall have become due otherwise than by
acceleration (with interest upon such principal and premium and, to the extent
that payment of such interest shall be enforceable under applicable law, on
overdue installments of interest at the same rate as the rate of interest (or
at the yield to Stated Maturity, in the case of Original Issue Discount
Securities) specified in the Securities of such series, to the date of such
payment or deposit) and such additional amount as shall be sufficient to cover
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, except as a result of negligence or bad faith,
and if any and all Events of Default under this Indenture with respect to such
series, other than the nonpayment of the principal of (and premium, if any, on)
the Securities of such series which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein -- then,
and in each and every such case, the Holders of a majority in aggregate
principal amount of all the Securities of such affected series then
Outstanding, by written notice to the Company and to the Trustee, may waive all
defaults or breaches with respect to such series and rescind and annul such
declaration and its consequences, but no such waiver, rescission and annulment
shall extend to or shall affect any subsequent default or breach or shall
impair any right consequent thereon.
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For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration shall have been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such declaration; and
payment of the portion of the principal thereof as shall have become due and
payable as a result of such declaration, together with interest, if any,
thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities.
SECTION 6.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(1) default shall be made in the payment of any interest on any
of the Securities of any series when and as such interest shall become
due and payable, and such default shall have continued for a period of
30 days, or
(2) default shall be made in the payment of the principal of (or
premium, if any, on) any of the Securities of any series when the same
shall have become due and payable, whether at the Stated Maturity
thereof or otherwise,
the Company shall, upon demand of the Trustee, pay to or deposit with the
Trustee, for the benefit of the Holders of the Securities of such series, the
whole amount then due and payable on such Securities, including all Coupons
appertaining thereto, for principal (and premium, if any) and interest (with
interest to the date of such payment upon overdue principal and premium and, to
the extent that payment of such interest shall be enforceable under applicable
law, on overdue installments of interest at the same rate as the rate of
interest (or at the yield to Stated Maturity, in the case of Original Issue
Discount Securities) specified in the Securities of such series to the date of
such payment or deposit); and, in addition thereto, such additional 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, except those incurred as a result of any such
person's negligence or bad faith.
Until such demand shall be made by the Trustee, the Company may
pay the principal of (and premium, if any) and interest on the Securities of
such series to the Holders of such Series.
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If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute judicial proceedings for the collection of the amounts so due and
unpaid, may prosecute such proceedings to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
of such series and collect the 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.
If an Event of Default with respect to the Securities of any
series shall occur and be continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of the
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 6.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities of
any series or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise:
(i) to file and prove a claim for the whole amount of the
principal (and premium, if any) and interest (or if the Securities of
any series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) owing
and unpaid in respect of the Securities of each series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, except as a result of negligence or bad faith) and
of the Holders allowed in such judicial proceeding, and
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(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, liquidator, assignee, trustee, 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,
except as a result of negligence or bad faith, and any other amounts due the
Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee, except in accordance with action taken under Article Nine, 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
of any series 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.
SECTION 6.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture, or under the
Securities of any series or any Coupons appertaining thereto, may be prosecuted
and enforced by the Trustee without the possession of any of the Securities of
such series or such Coupons 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, be
for the ratable benefit of the Holders of the Securities and Coupons in respect
of which such judgment has been recovered.
In any proceedings brought by the Trustee (and also in any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee shall be held to represent all
the Holders of the Securities and Coupons appertaining thereto in respect to
which action was taken, and it shall not be necessary to make any Holders of
such Securities or Coupons parties to any such proceedings.
SECTION 6.06. APPLICATION OF MONEYS COLLECTED. Any moneys
collected by the Trustee pursuant to this Article in respect of the Securities
of any series shall be applied in the following order, at the date or dates
fixed by the Trustee and,
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in the case of any distribution of such moneys on account of the principal of
(or premium, if any) or interest on the Securities of such series, upon
presentation of the several Securities and Coupons appertaining thereto in
respect of which moneys have been collected and the notation thereon of such
distribution if such principal, premium and interest be only partially paid or
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: In case the principal of the Securities of such series
shall not then be due and payable, to the payment of interest on the
Securities of such series in the order of the maturity of the
installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest (or
yield to Stated Maturity, in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made
ratably to the Persons entitled thereto, without preference or priority;
THIRD: In case the principal of the Securities of such series
shall then be due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
(and premium, if any) and interest, with interest upon overdue principal
and premium, and, to the extent that such interest has been collected by
the Trustee, upon overdue installments of interest at the same rate as
the rate of interest (or yield to Stated Maturity, in the case of
Original Issue Discount Securities) specified in the Securities of such
series; and in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities of such series, then
to the payment of such principal, premium and interest, without
preference or priority of principal or premium over interest, or of
interest over principal or premium, or of any installment of interest
over any other installment of interest, or of any Security of such
series, ratably to the aggregate of such principal, premium and
interest; and
FOURTH: To the Company or any other Person lawfully entitled
thereto.
SECTION 6.07. LIMITATION ON SUITS. Subject to Section 6.08, no
Holder of any Security of any series or of any Coupon shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a custodian, receiver, liquidator,
assignee, trustee,
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sequestrator or other similar official, or for any other remedy hereunder,
unless:
(1) such Holder shall have previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made
written request to the Trustee to institute such proceeding in its own
name as Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute such
proceeding; and
(5) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the Holders
of a majority in aggregate principal amount of the Securities of such
series then Outstanding;
it being understood and intended that no one or more of Holders of Securities
of any series or Coupons appertaining thereto shall have any right in any
manner whatsoever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of the
Securities or the Coupons, or to obtain or to seek to obtain preference or
priority over any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the affected series and Coupons.
SECTION 6.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture or any provision of any Security of any series, the Holder of a
Security of any series or Coupon appertaining thereto shall have the right,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and interest on such Security or Coupon on or after the
respective due dates expressed in such Security or Coupon or, in the case of
redemption, on the date of redemption, and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired or
affected without the consent of such Holder.
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SECTION 6.09. RESTORATION OF RIGHTS AND REMEDIES. In case the
Trustee or any Holder shall have proceeded to enforce any right or remedy under
this Indenture and such proceeding shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee or to
such Holder, then, and in every such case, the Company, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder; and all rights, remedies and powers of the Company, the Trustee and
the Holders shall continue as though no such proceeding had been taken.
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities and Coupons in the last paragraph of
Section 2.08, 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 6.11. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of Securities or Coupons 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.
SECTION 6.12. CONTROL BY HOLDERS. The Holders of not less than
a majority in aggregate principal amount of the Securities of any series
affected then Outstanding shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to Section 7.01, the Trustee need not take any
action which might involve the Trustee in personal liability or be
unduly prejudicial to the
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Holders of the Securities of the affected series not joining in the
giving of such direction.
SECTION 6.13. WAIVER OF PAST DEFAULTS. Prior to the declaration
of acceleration of the Maturity of any Securities of any series as provided by
Section 6.02, the Holders of not less than a majority in aggregate principal
amount of the Securities of such series at the time Outstanding with respect to
which a default or breach or an Event of Default shall have occurred and be
continuing may on behalf of the Holders of all of the Securities of such series
waive any past default or breach or Event of Default and its consequences,
except a default or breach or Event of Default in the payment of the principal
of (or premium, if any) or interest on any Security of such series.
Upon any such waiver, such default or breach 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 breach or Event of Default or impair any
right consequent thereon.
SECTION 6.14. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Security or Coupon by acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, of the Securities of any series holding in the aggregate more than
10% in aggregate principal amount of the Securities of such series then
Outstanding, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest (including
interest evidenced by a Coupon) on any Security on or after the respective due
dates expressed in such Security or Coupon or, in the case of redemption, on or
after the date of redemption.
SECTION 6.15. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the fullest extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
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performance of this Indenture; and the Company (to the fullest extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.01. CERTAIN DUTIES AND RESPONSIBILITIES. The Trustee,
prior to the occurrence of an Event of Default with respect to a particular
series of Securities and after the curing or waiving of all Events of Default
which may have occurred with respect to such series, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
In case an Event of Default with respect to a particular series of Securities
has occurred (which has not been cured or waived), the Trustee shall exercise
such of the rights and powers vested in it by this Indenture relating to such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect
to a particular series of Securities and after the curing or waiving of
all Events of Default which may have occurred with respect to such
series:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of
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any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein);
(b) the Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith relating to
Securities of any series in accordance with the direction of the Holders
of not less than a majority in principal amount of the Securities of
such series then Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, with respect
to the Securities of such series under this Indenture.
None of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any personal
financial liability in the performance of any duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable grounds
for believing that repayment of such funds or adequate security or indemnity
against such risk or liability is not reasonably assured to it.
SECTION 7.02. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall give notice of all defaults with respect to the
Securities of such series actually known to any Responsible Officer of the
Trustee (i) if any unregistered Securities of such series are then Outstanding,
to the Holders thereof by publication at least once in an Authorized Newspaper
in the Borough of Manhattan, The City of New York,(ii) if any unregistered
Securities of such series are then Outstanding, to the Holders thereof who have
filed their names and addresses with the Trustee pursuant to Section
5.04(c)(ii) by mailing such notice to such Holders at such addresses and (iii)
if any registered Securities of such series are then Outstanding, to the
Holders thereof by mailing such notice to such Holders at their addresses as
they shall appear on the Security Register, unless in each case such defaults
shall have been cured before the mailing or publication of such notice;
provided, however, that, except in the case of a default in the payment of the
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principal of (or premium, if any) or interest on any of the Securities of such
series, or in the payment of any sinking fund or analogous payment with respect
to the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Securities of such series; and provided, further, that in the
case of any default of the character specified in Section 6.01(4) with respect
to Securities of such series, no such notice to the 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 or condition 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 7.03. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise
provided in Section 7.01:
(a) the Trustee may conclusively 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 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, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Direction
or Company Request (unless other evidence in respect thereof is herein
specifically prescribed); and any resolution of the Board of Directors
shall be evidenced to the Trustee by a Certified Board Resolution;
(c) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby;
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(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all
such Events of Default which may have occurred, 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, approval or other paper or document,
unless requested in writing to do so by the Holders of a majority in
aggregate principal amount of Securities of any series then Outstanding;
provided, however, that if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is not, in the opinion of the
Trustee, reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to
so proceeding; the reasonable expense of every such investigation shall
be paid by the Company or, if paid by the Trustee, shall be repaid by
the Company upon demand;
(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 the Trustee hereunder;
(h) the Trustee shall not be deemed to have notice of any
default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which
is in fact such a default or Event of Default is received by the Trustee
at the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture; and
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
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SECTION 7.04. TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR IN
SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities of any series. The Trustee
represents that it is duly authorized to execute and deliver this Indenture and
perform its obligations hereunder. The Trustee shall not be accountable for
the use or application by the Company of any of the Securities of any series or
of the proceeds thereof.
SECTION 7.05. TRUSTEE, PAYING AGENT OR SECURITY REGISTRAR MAY
OWN SECURITIES. Subject to Sections 7.09 and 7.14, the Trustee or any paying
agent or Security Registrar with respect to any series of Securities, in its
individual or any other capacity, may become the owner or pledgee of Securities
of such series with the same rights it would have if it were not Trustee,
paying agent or Security Registrar with respect to such Securities.
SECTION 7.06. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST.
Subject to the provisions of Section 12.04 hereof, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company. So long as no Event of Default
with respect to Securities of any series shall have occurred and be continuing,
all interest allowed on any such moneys shall be paid from time to time upon a
Company Direction.
SECTION 7.07. COMPENSATION AND REIMBURSEMENT. The Company
covenants and agrees: (a) to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be agreed in writing
from time to time between the Company and the Trustee for all services rendered
by it hereunder (which shall not be limited by any provisions of law in regard
to the compensation of a trustee of an express trust); (b) except as otherwise
expressly provided, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents, attorneys and counsel and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from its
negligence or bad faith; and (c) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any and
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all loss, liability, damage, claim or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad faith on
the part of the Trustee, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. If any property other
than cash shall at any time be subject to a lien in favor of the Holders, the
Trustee, if and to the extent authorized by a receivership or bankruptcy court
of competent jurisdiction or by the supplemental instrument subjecting such
property to such lien, shall be entitled to make advances for the purpose of
preserving such property or of discharging tax liens or other prior liens or
encumbrances thereon. The obligations of the Company under this Section 7.07
to compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of the Indenture.
Such additional indebtedness shall be secured by a lien, prior to that of the
Securities of any series with respect to which the indebtedness arose, upon all
property and funds held or collected by the Trustee, as such, relating to such
series except funds held in Trust for the payment of principal of (and premium,
if any) or interest on Securities of such series. When the Trustee incurs
expenses or renders services in connection with an Event of Default specified
in Section 6.01(5) or Section 6.01(6), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable federal
or state bankruptcy, insolvency or other similar law.
SECTION 7.08. RIGHT OF TRUSTEE TO RELY ON AN OFFICERS'
CERTIFICATE WHERE NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as
otherwise provided in Section 7.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, such matter (unless other evidence in respect thereof is
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee and such Certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
SECTION 7.09. 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
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manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION 7.10. CORPORATE TRUSTEE REQUIRED; REQUIREMENTS FOR
ELIGIBILITY. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. Neither the Company nor any Person
directly or indirectly controlling, controlled by or under common control with
the Company shall serve as Trustee. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 7.11.
SECTION 7.11. RESIGNATION AND REMOVAL OF TRUSTEE; 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 requirement of Section 7.12.
(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 7.12 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may, at the expense of the
Company, 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 the Holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding by written notice
delivered to the Trustee and to the Company. If the instrument of acceptance by
a successor Trustee required by Section 7.12 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
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(d) If, at any time,
(1) the Trustee shall fail to comply with Section 7.09(a) with
respect to the Securities of any series after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security of such series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.10
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 a Certified Board Resolution may
remove the Trustee with respect to all Securities of any or all series, as
appropriate or (ii) subject to Section 6.14, any Holder who has been a bona
fide Holder of a Security of an affected series for at least six months may, on
behalf of such Holder and all other Holders similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee 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 a
Certified Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of such series (it being understood
that any such successor Trustee may be appointed with respect to other
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 7.12. 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
aggregate principal amount of the Securities of such series then Outstanding
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 7.12, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company with respect to
the
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Securities of such series. 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 7.12, any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of such Holder and all other Holders 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
(i) if any unregistered Securities of any affected series are then Outstanding,
to the Holders thereof by publication of such notice at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, (ii) if
any unregistered Securities of any affected series are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 5.04 by mailing such notice to such Holders at such
addresses (and the Trustee shall make such addresses available to the Company
for such purpose) and (iii) if any registered Securities of any affected series
are then Outstanding, to the Holders thereof by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register. If
the Company shall fail to give such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company. 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 7.12. ACCEPTANCE BY SUCCESSOR TO TRUSTEE. (a) In case
of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more series, each 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 with respect to such applicable series of the
Securities 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 with respect to such
applicable series; but, on the request of the Company or the successor Trustee,
such retiring Trustee shall upon payment of its charges then unpaid, execute,
acknowledge and deliver an instrument transferring to such successor Trustee
all such 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.
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(a) In case of the appointment hereunder of a successor Trustee
with respect to the Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
as provided in Section 7.11 an instrument accepting such appointment, and
thereupon the resignation or removal of the predecessor 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 predecessor Trustee with respect to all such Securities; but, on the
request of the Company or the successor Trustee, such predecessor Trustee, with
like effect as if originally named as Trustee herein, shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the predecessor Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such predecessor Trustee hereunder subject, nevertheless, to its
lien, if any, provided for in Section 7.07.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but less than all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute, acknowledge and deliver an
indenture supplemental hereto in which each successor Trustee shall accept such
appointment and which shall (i) contain such provisions as shall be deemed
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 each series to which the appointment
of such successor Trustee related, (ii) if the retiring Trustee shall not be
retiring with respect to the Securities of all series, 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 the series as to which the retiring Trustee shall not be retiring
shall continue to be vested in the retiring Trustee and (iii) add to or change
any of the provisions of this Indenture to the extent 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.
(c) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but less than all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute, acknowledge and deliver an
indenture supplemental hereto in which each successor Trustee shall accept
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such appointment and which shall (i) contain such provisions as shall be deemed
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 each series to which the appointment
of such successor Trustee relates, (ii) if the retiring Trustee is not retiring
with respect to the Securities of all series, 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 the series
as to which the retiring Trustee shall not be retiring shall continue to be
vested in the retiring Trustee, and (iii) add to or change any of the
provisions of this Indenture to the extent 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 each series to which
the appointment of such successor Trustee relates, and such retiring Trustee
shall duly assign, transfer and deliver to each successor trustee all property
and money held by such retiring Trustee hereunder with respect to the
Securities of each series to which the appointment of such successor trustee
relates.
(d) 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 rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(e) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 7.13. SUCCESSOR TO TRUSTEE BY MERGER, 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 qualified otherwise and eligible under this
Article,
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without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities of the particular
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Securities so authenticated; and in case at that time
any of the Securities of such series shall not have been authenticated, any
successor to the Trustee with respect to the Securities of such series may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in such Securities or in this
Indenture provided that the certificate of authentication of the Trustee shall
have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of the
particular series in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.
SECTION 7.14. 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 7.15. APPOINTMENT OF ADDITIONAL AND SEPARATE TRUSTEES.
Whenever the Trustee shall deem it necessary in order to conform to any law of
any jurisdiction, or the Trustee shall be advised by counsel, satisfactory to
it, that it is necessary and in the interest of the Holders of Securities of
any series or in the event that the Trustee shall have been requested to do so
by the Holders of a majority in principal amount of the Securities of any
series then Outstanding, the Trustee and the Company shall execute and deliver
an indenture supplemental hereto and all other instruments and agreements
necessary or proper to constitute another bank or trust company, or one or more
Persons appointed by the Company, either to act as additional trustee or
trustees hereunder, jointly with the Trustee, or to act as separate trustee or
trustees hereunder, in any such case with such powers with respect to the
affected series of Securities as may be provided in such indenture supplemental
hereto, and to vest in such bank, trust company or Person as such additional
trustee or separate trustee, as the case may be, any property, title, right or
power of the Trustee with respect to the affected series of Securities deemed
necessary or advisable by the Trustee, subject to the provisions of this
Section below set forth. In the event the Company shall not have joined in the
execution of such indenture supplemental
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hereto within ten days after the receipt of a written request from the Trustee
so to do, or in case an Event of Default with respect to the particular series
of Securities shall occur and be continuing, the Trustee may act under the
foregoing provisions of this Section without the concurrence of the Company;
and the Company hereby appoints the Trustee its agent and attorney-in-fact to
act for it under the foregoing provisions of this Section in either of such
contingencies. The Trustee may execute, deliver and perform any deed,
conveyance, assignment or other instrument in writing as may be required by any
additional trustee or separate trustee for more fully and certainly vesting in
and confirming to it any property, title, right or powers with respect to the
affected series of Securities conveyed or conferred to or upon such additional
trustee or separate trustee, and the Company shall, upon the Trustee's request,
join therein and execute, acknowledge and deliver the same; and the Company
hereby makes, constitutes and appoints the Trustee its agent and
attorney-in-fact for it and in its name, place and stead to execute,
acknowledge and deliver any such deed, conveyance, assignment or other
instrument with respect to the affected series of Securities in the event that
the Company shall not itself execute and deliver the same within ten days after
receipt by it of such request so to do. Any supplemental indenture executed
pursuant to the provisions of this Section shall conform to the provisions of
the Trust Indenture Act as in effect as of the date of such supplemental
indenture.
Every additional trustee and separate trustee hereunder shall, to
the extent permitted by law, be appointed and act, and the Trustee shall act
with respect to a particular series of Securities, subject to the following
provisions and conditions:
(1) the Securities of such series shall be authenticated by the
Trustee and all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody, investment and payment
of moneys, shall be exercised solely by the Trustee;
(2) all other rights, powers, duties and obligations with
respect to the Securities of such series conferred or imposed upon the
Trustee and such additional trustee or separate trustee or any of them
shall be conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees and separate trustee or
trustees jointly, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations with
respect to the Securities of such series shall be
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exercised and performed by such additional trustee or trustees or
separate trustee or trustees;
(3) no power hereby given to, or with respect to which it is
hereby provided may be exercised by, any such additional trustee or
separate trustee with respect to a particular series of Securities shall
be exercised hereunder by such additional trustee or separate trustee
except with the consent of the Trustee; and
(4) no trustee with respect to a particular series of Securities
hereunder shall be personally liable by reason of any act or omission of
any other trustee with respect to such series of Securities hereunder.
If at any time the Trustee shall deem it no longer necessary in order to
conform to any such law or shall be advised by counsel that it is no longer so
necessary in the interest of the Holders of Securities of any series or in the
event that the Trustee shall have been requested to do so in writing by the
Holders of a majority in principal amount of the Securities of such series then
Outstanding, the Trustee and the Company shall execute and deliver an indenture
supplemental hereto and all other instruments and agreements necessary or
proper to remove any additional trustee or separate trustee with respect to
such series. In the event that the Company shall not have joined in the
execution of such indenture supplemental hereto, instruments and agreements,
the Trustee may act on behalf of the Company to the same extent provided above.
Any additional trustee or separate trustee with respect to any
series of Securities may at any time by an instrument in writing constitute the
Trustee its agent or attorney-in-fact, with full power and authority, to the
extent which may be authorized by law, to do all acts and things and exercise
all discretions which it is authorized or permitted to do or exercise with
respect to such series, for and in its behalf and in its name. In case any
such additional trustee or separate trustee shall die, become incapable of
acting, resign or be removed, all the assets, property, rights, powers, trusts,
duties and obligations of such additional trustee or separate trustee with
respect to such series, as the case may be, so far as permitted by law, shall
vest in and be exercised by the Trustee, without the appointment of a new
successor to such additional trustee or separate trustee unless and until a
successor with respect to such series is appointed in the manner hereinbefore
provided.
Any request, approval or consent in writing by the Trustee to any
additional trustee or separate trustee of any series of Securities shall be
sufficient warrant to such
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additional trustee or separate trustee, as the case may be, to take such action
with respect to the particular series of Securities as may be so requested,
approved or consented to.
Each additional trustee and separate trustee appointed pursuant
to this Section shall be subject to, and shall have the benefit of, Articles
Six, Seven (other than Section 7.10) and Eight hereof and the following
Sections of this Indenture shall be specifically applicable to each additional
trustee and separate trustee: 5.04(a) (except to the extent that reference
therein is made to its eligibility under Section 7.10) and (b), 6.03, 7.01,
7.02, 7.09 and 7.14; provided, however, that no resignation of an additional or
separate trustee pursuant to Section 7.11 hereof shall be conditioned in any
sense whatever upon the appointment of a successor to such trustee.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 8.01. EVIDENCE OF ACTION BY HOLDERS. (a) Whenever in
this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount Outstanding of the Securities of any series may take
any action (including the making of any demand or request, the giving of any
direction, notice, consent or waiver or the taking of any other action) the
fact that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by such Holders in person or by
agent or proxy appointed in writing, or (b) by the record of such Holders
voting in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Holders.
SECTION 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING
OF SECURITIES. Subject to the provisions of Sections 7.01, 7.03 and 9.05,
proof of the execution of any instrument by a Holder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
The ownership of a registered Security shall be proved by the
Security Register relating to the series or by a certificate of the Security
Registrar.
The ownership of an unregistered Security or any Coupon attached
to such Security at its issuance shall be proved by the production of such
Security or Coupon, or, with respect to
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unregistered Securities only, by a certificate executed by any trust company,
bank, broker or other depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that at the date therein
mentioned such person had on deposit with such depositary, or exhibited to it,
the Securities therein described; or such facts may be proved by the
certificate or affidavit of the person holding such Security, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any unregistered
Security continues until (1) another certificate or affidavit bearing a later
date issued in respect of the same Security is produced, (2) such Security is
produced by some other Person or (3) such Security is no longer Outstanding.
The amount of unregistered Securities held by any Person may also be proved in
any other manner which the Trustee deems sufficient.
The Trustee may require such additional proof of any matter
referred to in this Section 8.02 as it shall deem necessary.
The record of any meeting of Holders shall be proved in the
manner provided in Section 9.06.
SECTION 8.03. WHO MAY BE DEEMED OWNER OF SECURITIES. Prior to
due presentment for registration of transfer of a registered Security of any
series, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered,
or, in the case of unregistered Securities, the bearer thereof or the owner
thereof determined pursuant to Section 8.02, as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by anyone) for the purpose
of receiving payment of or on account of the principal of (and premium, if any)
and interest on such Security and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar shall
be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 8.04. SECURITIES OWNED BY COMPANY OR CONTROLLED OR
CONTROLLING COMPANIES DISREGARDED FOR CERTAIN PURPOSES. In determining whether
the Holders of the requisite aggregate principal amount Outstanding of
Securities of any series have concurred in any direction, consent or waiver
under this Indenture, Securities of such series which are owned by the Company
or any other obligor on the Securities of such series or by any Person directly
or indirectly controlling or controlled by
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or under direct or indirect common control with the Company or any other
obligor on the Securities of such series shall be disregarded and deemed not to
be Outstanding for the purposes of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities of such series which a
Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded. Securities of such series so owned which have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section 8.04
if the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not the Company or any
other obligor on the Securities of such series or a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection for the Trustee.
SECTION 8.05. INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE
HOLDERS. At any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 8.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities of any series then
Outstanding specified in this Indenture in connection with such action, any
Holder of a Security of such series which is shown by the evidence to be
included in the Securities of the particular series the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
Corporate Trust Office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Security. Except as aforesaid, any
such action taken by the Holder of any Security shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Security, and
of any Security issued upon registration of transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Security or such other Security. Any action taken by
the Holders of the percentage in aggregate principal amount of the Securities
of any series specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the Holders of all
such Securities.
ARTICLE NINE
HOLDERS' MEETINGS AND CONSENTS
SECTION 9.01. PURPOSES FOR WHICH MEETING MAY BE CALLED. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to the
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provisions of this Article Nine for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of Securities of such series pursuant
to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee with
respect to Securities of such series pursuant to the provisions of
Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount
Outstanding of Securities of such series under any other provision of
this Indenture or under applicable law.
SECTION 9.02. CALL OF MEETING BY TRUSTEE. The Trustee may at
any time call a meeting of Holders of Securities of any series to take any
action specified in Section 9.01, to be held at such time and at such place in
New York, New York, or at such other location as the Trustee shall determine.
With respect to registered Securities of any series, notice of every such
meeting, setting forth the time and the place of such meeting, and in general
terms the action proposed to be taken at such meeting, shall be mailed to such
Holders at their addresses as they shall appear on the Security Register with
respect to such Securities. With respect to unregistered Securities of any
series, notice of every such meeting shall be published in an authorized
newspaper on two separate days. Such notice shall be provided not less than 20
nor more than 120 days prior to the date fixed for the meeting.
SECTION 9.03. CALL OF MEETINGS BY COMPANY OR HOLDERS. In case
at any time the Company, pursuant to a Certified Board Resolution, or the
Holders of at least 10% in aggregate principal amount of Securities of any
series then Outstanding, shall have requested the Trustee to call a meeting of
Holders of Securities of such series to take any action authorized in Section
9.01 by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have provided the notice
of such meeting within 20 days after receipt of such request, then the Company
or the Holders of such Securities in the amount above specified may determine
the time
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and the place in New York, New York, for such meeting and may call such meeting
by providing notice thereof as provided in Section 9.02.
SECTION 9.04. WHO MAY ATTEND AND VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of a particular series of
Securities, a Person shall (a) be a Holder of one or more Securities of such
series or (b) be a Person appointed by an instrument in writing as proxy by a
Holder of one or more Securities of such series. Subject to Section 8.01, the
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of a particular series of Securities shall be the Persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS MAY BE MADE BY TRUSTEE.
Notwithstanding any other provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of Holders
of Securities of a particular series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
necessary. Except as otherwise permitted or required by any such regulations,
the holding of Securities of such series shall be proved in the manner
specified in Section 8.02 and the appointment of any proxy shall be proved in
the manner specified in Section 8.02.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders as provided in Section 9.03, in which case the
Company or such Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting may be elected by vote of the Holders of a majority in
principal amount of Securities of the particular series then Outstanding
represented at the meeting and entitled to vote.
Subject to the provisions of Section 8.04, at any meeting each
Holder of Securities of the particular series or proxy entitled to vote shall
have one vote for each $1,000 principal amount of Securities of such series
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security of such series challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities of such series held by him or instruments in writing as aforesaid
duly
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designating him as the Person to vote on behalf of other Holders of Securities
of the particular series. At any meeting of Holders duly called pursuant to
the provisions of Section 9.02 or Section 9.03 the presence of Persons holding
or representing Securities of the particular series in an aggregate principal
amount outstanding sufficient to take action on the business for the
transaction of which such meeting was called shall constitute a quorum, but, if
less than a quorum be present, the meeting may be adjourned from time to time
by the Holders of a majority in principal amount outstanding of the Securities
of such series represented at the meeting and entitled to vote, and the meeting
may be held as so adjourned without further notice.
SECTION 9.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE
KEPT. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders or proxies entitled to vote. The
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 9.02. The record shall be signed and
verified by the affidavits of the chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 9.07. WRITTEN CONSENT IN LIEU OF MEETINGS. The written
authorization or consent of the requisite percentage herein provided of Holders
of Securities of any series entitled to vote at any meeting of Holders of
Securities of a particular series, evidenced as provided in Article Eight and
filed with the Trustee, shall be effective in lieu of a meeting of such Holders
with respect to any matter provided for in this Article Nine.
SECTION 9.08. NO DELAY OF RIGHTS BY MEETING. Nothing in this
Article Nine contained shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Holders of Securities of any series, or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
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reserved to the Trustee or to the Holders of Securities of such series under
any of the provisions of this Indenture or of the Securities of such series.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
ENTERED INTO WITHOUT CONSENT OF HOLDERS. The Company, when authorized by a
Certified Board Resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect) for one
or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Eleven;
(b) to appoint one or more additional or separate trustees to
act under this Indenture in the manner and to the extent contemplated by
Section 7.15;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of
the Holders of Securities of any or all series as the Board of Directors
and the Trustee shall consider to be for the protection of the Holders
of Securities of such series, and to make the occurrence, or the
occurrence and continuance, of a default of any such additional
covenants, restrictions, conditions or provisions a default or an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth with respect to
Securities of such series; provided, however, that in respect of any
such additional covenant, restriction, condition or provision with
respect to Securities of such series, such supplemental indenture may
provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such series to waive such default;
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(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision unless such change or
elimination would not adversely affect such provision as applied to such
Securities created prior to the execution of such supplemented
indenture.
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or
in any supplemental indenture; to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee; or to make such other
provisions in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests of Holders of
Securities of any series;
(f) to modify, amend or supplement this indenture to comply with
the provisions of Sections 4.05 and 11.01;
(g) to provide for the issuance of unregistered Securities, or
for the exchange ability of registered Securities of any series with
unregistered Securities of a series issued hereunder, or vice versa, and
to make all appropriate changes for such purpose;
(h) to provide for the issuance under this Indenture of
Securities of a series having any form or terms contemplated by Sections
2.01 and 2.02; and
(i) 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 7.15.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise. The
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Trustee, subject to the provisions of Sections 7.01 and 7.03, may regard an
Officers' Certificate or Opinion of Counsel as conclusive evidence that any
such supplemental indenture with respect to any series of Securities complies
with the provisions of this Article Ten.
Any supplemental indenture authorized by the provisions of this
Section 10.01 may be executed by the Company and the Trustee without the
consent of the Holders of any Securities of any series then Outstanding,
notwithstanding any of the provisions of Section 10.02.
SECTION 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS
OF A MAJORITY IN PRINCIPAL AMOUNT OF SECURITIES. With the consent (evidenced
as provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding, the Company, when authorized by a Certified Board Resolution, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto with respect to Securities of the particular
series (which shall conform to the provisions of the Trust Indenture Act as
then in effect) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture relating to such series or of modifying in any manner
the rights of the Holders of Securities of the particular series; provided,
however, that no such supplemental indenture shall (i) extend the Stated
Maturity of any Security, or reduce the principal amount thereof, or reduce the
rate or extend the time of payment of any interest thereon, or reduce any
premium payable upon the redemption thereof, or reduce the amount of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of Stated Maturity thereof pursuant to Section
6.02, or change the currency or currency unit in which any Security is payable,
without the consent of the Holder of each Security so affected, or (ii) reduce
the aforesaid majority in aggregate principal amount of Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of all Securities of
each affected series.
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 series not so
affected.
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Upon a Company Request, accompanied by a Certified Board
Resolution authorizing the execution of any such supplemental indenture
relating to Securities of a particular series, and upon the filing with the
Trustee of evidence of the consent of Holders of Securities of the particular
series as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
It shall not be necessary for the Holders of Securities of a
particular series to approve under this Section 10.02 the particular form of
any proposed supplemental indenture with respect to such series of Securities,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section 10.02,
the Company shall mail a notice thereof by first-class mail to the Holders of
registered Securities of each series affected thereby at their addresses as
they shall appear on the Security Register for such Securities, or, in the case
of unregistered Securities, shall give notice in the manner provided in Section
5.04 hereof, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to provide such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 10.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution and delivery of any supplemental indenture with respect to any series
of Securities pursuant to the provisions of this Article Ten, this Indenture
shall be and be deemed to be modified and amended with respect to the affected
series of Securities in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Company and the Holders of Securities of the series
affected shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.03,
may regard an Officers' Certificate and Opinion of Counsel as conclusive
evidence that any such supplemental indenture with respect to any series of
Securities complies with the provisions of this Article Ten, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
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affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 10.04. SECURITIES MAY BEAR NOTATION OF CHANGES BY
SUPPLEMENTAL INDENTURES. Securities authenticated and delivered after the
execution, pursuant to the provisions of this Article Ten, of any supplemental
indenture with respect to any series of Securities may, and shall if required
by the Trustee, bear a notation in the form approved by the Trustee as to any
matter provided for in such supplemental indenture. New Securities of the
affected series so modified as to conform, in the opinion of the Trustee and
the Board of Directors of the Company, to any modification of this Indenture
contained in any such supplemental indenture with respect to such series of
Securities may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of the particular series then
Outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
SECTION 11.01. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
The Company may consolidate with, or merge into, or sell, lease or convey all
or substantially all of its assets to, any person, provided that in any such
case, (i) either the Company shall be the continuing corporation, or the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by sale, lease or conveyance all or substantially all
of the Company's assets shall be a corporation organized and existing under the
laws of the United States of America or a State thereof or the District of
Columbia and such corporation shall expressly assume the due and punctual
payment of the principal of (and premium, if any) and any interest on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, and (ii) immediately
after such merger or consolidation, or such sale, lease or conveyance, no Event
of Default or no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing.
The Company may not consolidate with, merge into, or sell, lease
or convey all or substantially all of its assets to, another Person, if as a
result of such consolidation, merger, sale, lease or conveyance, any property
owned by the Company or a Restricted Subsidiary immediately prior thereto would
be subject to a lien, unless (a) simultaneously therewith or prior thereto
effective provision shall be made for the securing (equally and
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ratably with any other indebtedness of or guaranteed by the Company then
entitled thereto) of the due and punctual payment of the principal of and
interest on all of the Securities equally and ratably with (or prior to) the
debt secured by such lien, or (b) the Company would be permitted to create such
lien pursuant to Section 4.06 or 4.08 without equally and ratably securing the
Securities.
SECTION 11.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case
of any such consolidation, merger, sale, conveyance or lease referred to in
Section 11.01 and upon the assumption by the successor corporation or entity,
by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and interest on all of the Securities and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Company, such successor corporation or entity shall succeed to
and be substituted for the Company, with the same effect as if it had been
named herein as a party. Such successor corporation or entity thereupon may
cause to be signed, and may issue either in its own name or in the name of
Hussmann International, Inc. any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to
the Trustee, and, upon the order of such successor corporation or entity
instead of the Company and subject to all the terms, conditions or limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously should have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation or entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in accordance with the terms
of this Indenture as though all of such Securities had been issued at the date
of the execution hereof. In the event of any such sale or conveyance, but not
any such lease, the Company or any successor corporation or entity which shall
theretofore have such in the manner described in this Article Eleven shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be dissolved and liquidated.
SECTION 11.03. OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The
Trustee, subject to Sections 7.01 and 7.03, shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating that
any such consolidation, merger, sale, conveyance or lease and any such
assumption complies with the provisions of this Article Eleven.
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. SATISFACTION AND DISCHARGE OF INDENTURE. If at
any time (a) the Company shall have delivered to the Trustee for cancellation
all Securities of any series theretofore authenticated and delivered (other
than Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.08 or Securities for which
payment money has theretofore been deposited in trust and thereafter repaid to
the Company as provided in Section 12.05), or (b) all Securities of any series
not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee as trust funds the entire amount sufficient to pay at
Stated Maturity or upon redemption all such Securities not theretofore
delivered to the Trustee for cancellation, including principal (and premium, if
any) and interest due or to become due at Stated Maturity or on such redemption
date, as the case may be, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except the Company's obligations
with respect to such Securities under Sections 2.06, 2.08, 4.03, 4.05, 5.01,
7.07, 7.11, 7.12, 12.02 and Article 3 of this Indenture, so long as any
principal of (and premium, if any) or interest on such securities remains
unpaid, and, thereafter, only the Company's rights and obligations under
Section 4.05 and 7.07) and the Trustee, on demand of the Company accompanied by
an Officers' Certificate and an Opinion of Counsel as required by Section 14.05
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture. Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.07 shall survive.
SECTION 12.02. DEFEASANCE AND DISCHARGE OF SECURITIES OR CERTAIN
OBLIGATIONS. Notwithstanding Section 12.01 and except as otherwise specified
as contemplated by Section 12.01, this Section 12.02 shall be applicable to the
Securities of any series:
(a) The Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Securities of that series,
the provisions of this Indenture as it relates to such Outstanding
Securities (except as to (i) the rights of Holders of Securities to
receive, from the trust funds described in subparagraph (1) below,
payment of the principal of (and premium, if any) and any installment of
principal
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of (and premium, if any) or interest on such Securities on the Stated
Maturity of such principal or installment of principal or interest or
any mandatory sinking fund payments or analogous payments applicable to
the Securities of that series on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities, (ii) the Company's obligations with respect to such
Securities under Sections 2.06, 2.08, 4.03, 4.05, 5.01, 7.07, 7.11,
7.12, 12.02 and Article 3 of this Indenture, so long as any principal of
(and premium, if any) or interest on such Securities remains unpaid and,
thereafter, only the Company's rights and obligations under Sections
4.05 and 7.07, and (iii) the rights, powers, trusts, duties and
immunities of the Trustee with respect to such series) shall no longer
be in effect, and the Trustee, at the expense of the Company, shall,
upon a Company Direction, execute proper instruments acknowledging the
same, provided that the following conditions have been satisfied:
(1) With reference to this Section 12.02(a), the Company
has deposited or caused to be deposited with the Trustee
irrevocably (subject to the provisions of Section 12.02(c) and
the last paragraph of Section 6.06), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series, (A)
money in an amount, or (B) Government Obligations which, through
the payment of interest and principal in respect thereof in
accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than the opening of
business on the due date of any payment referred to in clause (i)
or (ii) below of this subparagraph (1) money in an amount, or (C)
a combination thereof, sufficient, after payment of all taxes in
respect thereof payable by the Trustee, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge (i) the principal of (and premium,
if any) and each installment of principal (and premium, if any)
and interest on the Outstanding Securities of that series on the
Stated Maturity of such principal or installment of principal or
interest or any date fixed for redemption of such Outstanding
Securities and (ii) any mandatory sinking fund payments or
analogous payments applicable to Securities of such series on the
day on which such
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payments are due and payable in accordance with the terms of this
Indenture and of such Securities;
(2) the Company has paid or caused to be paid all other
sums payable in respect of such Securities, and such payment and
the deposit set forth in subparagraph (1) above 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;
(3) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of
Default with respect to the Securities of that series shall have
occurred and be continuing on the date of such deposit and no
Event of Default under Section 6.01(5) or event which with the
giving of notice or lapse of time, or both, would become an Event
of Default under Section 6.01(5) shall have occurred and be
continuing on the 91st day after such date;
(4) the Company has delivered to the Trustee an Opinion
of counsel of recognized national standing or a ruling of the
Internal Revenue Service to the effect that Holders of the
Securities of that series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income
tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent in this Indenture provided for relating to
the defeasance and discharge of the entire indebtedness on all
Outstanding Securities of any such series as contemplated by this
Section 12.02(a) have been complied with.
(b) The Company may omit to comply with and shall be released
from its obligations under any term, provision or condition set forth in
Sections 4.06, 4.07, 4.08 and Article Eleven, and Section 6.01(4) with
respect to Sections 4.06, 4.07, 4.08 and Article Eleven shall be deemed
not to be an Event of Default, in each
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case with respect to the Securities of that series, provided, that the
following conditions have been satisfied:
(1) with reference to this Section 12.02(b), the Company
has deposited or caused to be deposited with the Trustee
irrevocably subject to the provisions of Section 12.02(c) and the
last paragraph of Section 6.06), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series, (A)
money in an amount, or (B) Government Obligations which, through
the payment of interest and principal in respect thereof in
accordance with their terms, without consideration of any
reinvestment thereof, will provide not later than the opening of
business on the due date of any payment referred to in clause (i)
or (ii) below of this subparagraph (1) money in an amount, or (C)
a combination thereof, sufficient, after payment of all taxes in
respect thereof payable by the Trustee, 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 (i) the principal
of (and premium, if any) and each installment of principal (and
premium, if any) and interest on the Outstanding Securities of
that series on the Stated Maturity of such principal or
installment of principal or interest or any date fixed for
redemption of such Outstanding Securities and (ii) any mandatory
sinking fund payments or analogous payments applicable to
Securities of such series on the day on which such payments are
due and in accordance with the terms of this Indenture and of
such Securities;
(2) such deposit shall not cause the Trustee with respect
to the Securities of that series to have a conflicting interest
for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(3) 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;
(4) no Event of Default or event which with the giving of
notice or lapse of time, or both,
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would become an Event of Default with respect to the Securities
of that series shall have occurred and be continuing on the date
of such deposit and no Event of Default under Section 6.01(5) or
event which with the giving of notice or lapse of time, or both,
would become an Event of Default under Section 6.01(5) shall have
occurred and be continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion
of Counsel of recognized national standing 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
(6) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent in this Indenture provided for relating to
the defeasance contemplated by this Section 12.02(b) have been
complied with.
(c) The Trustee shall deliver or pay to the Company from time to
time upon a Company Direction any money or Government Obligations held
by it as provided in this Section 12.02 which, in the opinion of a
nationally recognized firm of independent 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 money or Government Obligations
were deposited or received.
SECTION 12.03. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES. All moneys with respect to a particular series of
Securities deposited with the Trustee pursuant to Section 12.01 or Section
12.02 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including, except in the case of Section 12.02(a),
the Company acting as its own paying agent), to the Holders of Securities of
such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal (and premium, if any) and interest.
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SECTION 12.04. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture, all moneys
then held by any paying agent (other than the Trustee, if the Trustee is
serving as a paying agent) under the provisions of this Indenture shall, upon a
Company Direction, be repaid to the Company or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 12.05. REPAYMENT OF MONEYS HELD BY TRUSTEE. Any moneys
deposited with the Trustee or any paying agent for the payment of the principal
of (and premium, if any) or interest on any Securities of any series and not
applied but remaining unclaimed by the Holders of Securities of that series for
two years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have become due and payable, shall be repaid
to the Company by the Trustee or such paying agent by Company Direction; and
the Holders of any of the Securities of that series entitled to receive Such
payment shall thereafter look only to the Company for the payment thereof and
all liability of the Trustee or such paying agent with respect to such moneys
shall thereupon cease; provided, however, that the Trustee or such paying
agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once a week for two successive weeks (in each
case on any day of the week) in an Authorized Newspaper, a notice that such
moneys have not been so applied and that after a date named therein any
unclaimed balance of said moneys then remaining will be returned to the
Company.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 13.01. INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS
AND EMPLOYEES OF COMPANY EXEMPT 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 corporation,
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, 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 corporation, or any of them, because
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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 on 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 and delivery of this Indenture
and the issue of Securities hereunder.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company shall bind its successors
and assigns, whether so expressed or not.
SECTION 14.02. ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR
CORPORATION VALID. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
that time be the successor of the Company.
SECTION 14.03. REQUIRED NOTICES OR DEMANDS. Unless otherwise
provided in this Indenture, any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
any Holders to or on the Company may be given or served by being deposited
postage prepaid in a post office letter box in the United States addressed
(until another address is filed by the Company with the Trustee), as follows:
Hussmann International, Inc., 00000 Xx. Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000-0000, to the attention of the Treasurer. Any notice, direction, request
or demand by the Company or by any Holder to or upon the Trustee may be given
or made, for all purposes, by being deposited first-class postage prepaid in a
post office letter box in the United States or airmail postage prepaid if sent
from outside the United States, addressed to the Corporate Trust Office,
Attention: Corporate Trust Trustee Administration. Any notice required or
permitted to be mailed to a Holder of registered Securities of any series by
the Company or the Trustee pursuant to the provisions of this
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Indenture shall be deemed to be properly mailed by being deposited postage
prepaid in a post office letter box in the United States addressed to such
Holder at the address of such Holder as shown on the Security Register for the
particular series of Securities. Any notice required or permitted to be given
to a Holder of unregistered Securities of any series shall be deemed to be
properly given if such notice is published in an Authorized Newspaper in New
York, New York or such other cities as shall be specified with respect to such
Securities.
SECTION 14.04. INDENTURE AND SECURITIES TO BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture and each
Security shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be governed by and construed in accordance
with the laws of such State, without regard to conflicts of laws principles
thereof. The descriptive headings of the Articles and Sections of this
Indenture are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
SECTION 14.05. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO
BE FURNISHED UPON APPLICATION OR REQUEST BY THE COMPANY. Upon any application
or request by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenants compliance with which
constitutes a condition precedent) which relate to the authentication and
delivery of the Securities of any series, to the release or the release and
substitution of property subject to the lien of the Indenture, to the
satisfaction and discharge of the Indenture, or to any other action to be taken
at the request or upon the application of the Company have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or request as to which the furnishing of any such document is
specifically required by any provision of this Indenture relating to such
application or request, no additional certificate or opinion, as the case may
be, need be furnished.
Each certificate (other than an annual certificate delivered pursuant to
Section 4.09) or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include: (1) a statement that the
Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an
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informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 14.06. PAYMENTS DUE ON NON-BUSINESS DAYS. In any case
where the date of maturity of interest on or principal of any Security or the
date fixed for redemption of any Security shall not be a Business Day, then
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 14.07. MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED.
The Trustee shall segregate moneys, funds and accounts held by the Trustee
hereunder in one currency (or unit thereof) from any moneys, funds or accounts
in any other currencies (or units thereof), notwithstanding any provision
herein which would otherwise permit the Trustee to commingle such amounts.
SECTION 14.08. PAYMENT TO BE IN PROPER CURRENCY. Other than as
provided herein or in the Security, an Officers' Certificate or a supplemental
indenture, the obligation of the Company to make any payment of principal of
(and premium, if any) and interest, if any, on such Security shall not be
discharged or satisfied by any tender by the Company, or collection by the
Trustee, in any currency or currency unit other than that in which such
Security is denominated (the "Specified Currency"), except to the extent that
the Trustee timely holds for such payment the full amount of the Specified
Currency when due and payable. If any such tender or collection is made in
other than the Specified Currency, the Trustee may take such actions as it
considers appropriate to exchange such other currency or currency unit for the
Specified Currency. The costs and risks of any such exchange, including
without limitation the risks of delay and exchange rate fluctuation, shall be
borne by the Company, the Company shall remain fully liable for any shortfall
or delinquency in the full amount of the Specified Currency then due and
payable and in no circumstances shall the Trustee be liable therefor. The
Company waives any defense of payment based upon any such tender or collection
which is not in the Specified Currency, or which, when exchanged for the
Specified Currency by the Trustee, is less than the full amount of the
Specified Currency then due and payable.
Notwithstanding the foregoing, if a Specified Currency is not
available to make any payment of principal of (and premium, if any) and
interest, if any, on a Security denominated in other than Dollars due to the
imposition of exchange controls
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or other circumstances beyond the Company's control, the Company shall be
entitled to satisfy its obligation by making such payment in Dollars on the
basis of the Market Exchange Rate on the date of such payment, or if such
Market Exchange Rate is not then available, on the basis of the most recently
available Market Exchange Rate. For any Specified Currency, "Market Exchange
Rate" shall mean the noon buying rate in New York, New York for cable transfers
of such Specified Currency as certified for customs purposes by the Federal
Reserve Bank of New York.
SECTION 14.09. PROVISIONS REQUIRED BY TRUST INDENTURE ACT TO
CONTROL. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed pursuant to Section 318(c) of
the Trust Indenture Act, the imposed duties shall control.
SECTION 14.10. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 14.11. 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.
The Trustee hereby accepts the trusts in this Indenture declared
and provided, upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, HUSSMANN INTERNATIONAL, INC. and THE BANK OF
NEW YORK have caused this Indenture to be duly executed, all as of the day and
year first above written.
HUSSMANN INTERNATIONAL, INC.
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK, AS TRUSTEE
By:
-------------------------------
Name:
Title:
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