EXHIBIT 4(d)
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ZENITH ELECTRONICS CORPORATION
AND
BANK ONE TRUST COMPANY, NA
Trustee
_____________________________
_____________________________
INDENTURE
Dated as of November 9, 1999
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8.19% Senior Debentures Due 2009
TABLE OF CONTENTS*
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ARTICLE ONE DEFINITIONS.......................................................................................... 5
Section 1.01. Definitions........................................................................... 5
ARTICLE TWO ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF DEBENTURES............................... 8
Section 2.01. Designation, Amount and Issue of Debentures........................................... 8
Section 2.02. Form of Debentures.................................................................... 8
Section 2.03. Date and Denomination of Debentures................................................... 8
Section 2.04. Execution of Debentures............................................................... 9
Section 2.05. Exchange and Registration of Transfer of Debentures................................... 9
Section 2.06. Mutilated, Destroyed, Lost or Stolen Debentures....................................... 10
Section 2.07. Temporary Debentures.................................................................. 11
Section 2.08. Cancellation of Debentures Paid, etc.................................................. 11
ARTICLE THREE REDEMPTION OF DEBENTURES........................................................................... 11
Section 3.01. Redemption Prices..................................................................... 11
Section 3.02. Notice of Redemption; Selection of Debentures......................................... 12
Section 3.03. Payment of Debentures Called for Redemption........................................... 12
ARTICLE FOUR PARTICULAR COVENANTS OF THE COMPANY................................................................. 13
Section 4.01. Payment of Principal, Premium and Interest............................................ 13
Section 4.02. Offices for Notices and Payments, etc................................................. 13
Section 4.03. Appointments to Fill Vacancies in Trustee's Office.................................... 13
Section 4.04. Provision as to Paying Agent.......................................................... 13
Section 4.05. Most Favored Lender Provision......................................................... 14
ARTICLE FIVE DEBENTUREHOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE................................... 15
Section 5.01. Debentureholders Lists................................................................ 15
Section 5.02. Preservation and Disclosure of Lists.................................................. 16
Section 5.03. Reports by the Company................................................................ 17
Section 5.04. Reports by the Trustee................................................................ 17
ARTICLE SIX REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON EVENT OF DEFAULT..................................... 19
Section 6.01. Events of Default..................................................................... 19
Section 6.02. Payment of Debentures on Default; Suit Therefor....................................... 21
Section 6.03. Application of Monies Collected by Trustee............................................ 22
Section 6.04. Proceedings by Debentureholders....................................................... 23
______________________________
* This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Section 6.05. Proceedings by Trustee................................................................ 23
Section 6.06. Remedies Cumulative and Continuing.................................................... 23
Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Debentureholders....... 24
Section 6.08. Notice of Defaults.................................................................... 24
Section 6.09. Undertaking to Pay Costs.............................................................. 24
ARTICLE SEVEN CONCERNING THE TRUSTEE............................................................................. 25
Section 7.01. Duties and Responsibilities of Trustee................................................ 25
Section 7.02. Reliance on Documents, Opinions, etc.................................................. 26
Section 7.03. No Responsibility for Recitals, etc................................................... 27
Section 7.04. Trustee, Paying Agents or Registrar May Own Debentures................................ 27
Section 7.05. Monies to be Held in Trust............................................................ 27
Section 7.06. Compensation and Expenses of Trustee.................................................. 27
Section 7.07. Officers' Certificate as Evidence..................................................... 27
Section 7.08. Conflicting Interest of Trustee....................................................... 28
Section 7.09. Eligibility of Trustee................................................................ 32
Section 7.10. Resignation or Removal of Trustee..................................................... 33
Section 7.11. Acceptance by Successor Trustee....................................................... 34
Section 7.12. Succession by Merger, etc............................................................. 34
Section 7.13. Limitation on Rights of Trustee as a Creditor......................................... 35
ARTICLE EIGHT CONCERNING THE DEBENTUREHOLDERS.................................................................... 38
Section 8.01. Action by Debentureholders............................................................ 38
Section 8.02. Proof of Execution by Debentureholders................................................ 39
Section 8.03. Who Are Deemed Absolute Owners........................................................ 39
Section 8.04. Company-Owned Debentures Disregarded.................................................. 39
Section 8.05. Revocation of Consents; Future Holders Bound.......................................... 39
ARTICLE NINE DEBENTUREHOLDERS' MEETINGS.......................................................................... 40
Section 9.01. Purposes of Meetings.................................................................. 40
Section 9.02. Call of Meetings by Trustee........................................................... 40
Section 9.03. Call of Meetings by Company or Debentureholders....................................... 41
Section 9.04. Qualifications for Voting............................................................. 41
Section 9.05. Regulations........................................................................... 41
Section 9.06. Voting................................................................................ 41
Section 9.07. No Delay of Rights by Meeting......................................................... 42
ARTICLE TEN SUPPLEMENTAL INDENTURES.............................................................................. 42
Section 10.01. Supplemental Indentures without Consent of Debentureholders........................... 42
Section 10.02. Supplemental Indentures with Consent of Debentureholders.............................. 43
Section 10.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures................ 44
Section 10.04. Notation on Debentures................................................................ 44
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Section 10.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee..................................................................... 44
ARTICLE ELEVEN CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE................................................. 44
Section 11.01. Company May Consolidate, etc., on Certain Terms....................................... 44
Section 11.02. Successor Corporation to be Substituted............................................... 45
Section 11.03. Opinion of Counsel to be Given Trustee................................................ 45
ARTICLE TWELVE SATISFACTION AND DISCHARGE OF INDENTURE........................................................... 46
Section 12.01. Discharge of Indenture................................................................ 46
Section 12.02. Deposited Monies to be Held in Trust by Trustee....................................... 46
Section 12.03. Paying Agent to Repay Monies Held..................................................... 46
Section 12.04. Return of Unclaimed Monies............................................................ 46
ARTICLE THIRTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS ................................ 47
Section 13.01. Indenture and Debentures Solely Corporate Obligations................................. 47
ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS........................................................................ 47
Section 14.01. Provisions Binding on Company's Successors............................................ 47
Section 14.02. Official Acts by Successor Corporation................................................ 47
Section 14.03. Addresses for Notices, etc............................................................ 47
Section 14.04. Governing Law......................................................................... 47
Section 14.05. Evidence of Compliance with Conditions Precedent...................................... 48
Section 14.06. Legal Holidays........................................................................ 48
Section 14.07. Trust Indenture Act to Control........................................................ 48
Section 14.08. No Security Interest Created.......................................................... 48
Section 14.09. Benefits of Indenture................................................................. 48
Section 14.10. Table of Contents, Headings, etc...................................................... 48
Section 14.11. Execution in Counterparts............................................................. 49
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Signatures............................................................... 50
Acknowledgments.......................................................... 51
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TIE-SHEET
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of provisions of Trust Indenture Act of 1939 with Indenture dated as of
November 9, 1999, between Zenith Electronics Corporation and Bank One Trust
Company, NA, Trustee:
Section of Act Section of Indenture
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310(a)(1) and (2).......................................................... 7.09
310(a)(3) and (4).......................................................... Not applicable
310(b)..................................................................... 7.08 and 7.10(b)
310(c)..................................................................... Not applicable
311(a) and (b)............................................................. 7.13
311(c)..................................................................... Not applicable
312(a)..................................................................... 5.01 and 5.02(a)
312(b) and (c)............................................................. 5.02(b) and (c)
313(a)..................................................................... 5.04(a)
313(b)(1).................................................................. Not applicable
313(b)(2).................................................................. 5.04(b)
313(c)..................................................................... 5.04(c)
313(d)..................................................................... 5.04(d)
314(a)..................................................................... 5.03
314(b)..................................................................... Not applicable
314(c)(1) and (2).......................................................... 14.05
314(c)(3).................................................................. Not applicable
314(d)..................................................................... Not applicable
314(e)..................................................................... 14.05
314(f)..................................................................... Not applicable
315(a), (c) and (d)........................................................ 7.01
315(b)..................................................................... 6.08
315(e)..................................................................... 6.09
316(a)(1).................................................................. 6.01 and 6.07
316(a)(2).................................................................. Omitted
316(a) last sentence....................................................... 8.04
316(b)..................................................................... 6.04
317(a)..................................................................... 6.02
317(b)..................................................................... 4.04(a)
318(a)..................................................................... 14.07
____________________________
This tie-sheet is not part of the Indenture as executed.
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THIS INDENTURE, dated as of November 9, 1999 between ZENITH ELECTRONICS
CORPORATION, a Delaware corporation (hereinafter sometimes called the
"Company"), and Bank One Trust Company, NA a national banking association
organized and existing under the laws of the United States (hereinafter
sometimes called the "Trustee"),
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its 8.19% Senior Debentures Due 2009 (hereinafter sometimes called
the "Debentures"), in an aggregate principal amount not to exceed $50,000,000
and, to provide the terms and conditions upon which the Debentures are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, the Debentures, the certificate of authentication to be borne by
the Debentures is to be substantially in the following forms:
[FORM OF FACE OF DEBENTURE]
No. $
ZENITH ELECTRONICS CORPORATION
8.19% SENIOR DEBENTURE DUE 2009
ZENITH ELECTRONICS CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), for value
received, hereby promises to pay to ________________________, or registered
assigns, the principal sum of _______________________________________________
Dollars on November 1, 2009, at the office or agency of the Company maintained
for that purpose in the City of Chicago or the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to pay interest, semi-annually on May 1 and November 1 of each year,
commencing May 1, 2000, on said principal sum at said office or agency, in like
coin or currency, at the rate per annum specified in the title of this
Debenture, from the May 1 or the November 1, as the case may be, next preceding
the date of this Debenture to which interest has been paid or duly provided for,
unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Debenture, or unless no
interest has been paid or duly provided for on the Debentures, in which case
from November 9, 1999 until payment of said principal sum has been made or duly
provided for. Notwithstanding the foregoing, if the date hereof is after any
April 15 or October 15, as the case may be, and before the following May 1 or
November 1, this Debenture shall bear interest from such May 1 or November 1;
provided, however, that if the Company shall default in the payment of interest
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due on such May 1 or November 1, then this Debenture shall bear interest from
the next preceding May 1 or November 1 to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for on the
Debentures, from November 9, 1999. The interest so payable on any May 1 or
November 1 will, subject to certain exceptions provided in the Indenture
referred to on the reverse hereof, be paid to the person in whose name this
Debenture is registered
at the close of business on the April 15 or October 15 next preceding such May 1
or November 1 and may, at the option of the Company, be paid by check mailed to
the registered address of such person.
Reference is made to the further provisions of this Debenture set forth on
the reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Debenture shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of said State.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, Zenith Electronics Corporation has caused this
instrument to be duly executed under its corporate seal.
Dated: November 9, 1999
ZENITH ELECTRONICS CORPORATION
[SEAL]
By________________________________________
Attest:
___________________________________
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Debentures described in the within-mentioned Indenture.
Bank One Trust Company, NA
As Trustee
By_______________________________________
Authorized Signature
[FORM OF REVERSE OF DEBENTURE]
ZENITH ELECTRONICS CORPORATION
8.19% SENIOR DEBENTURE DUE 2009
This Debenture is one of a duly authorized issue of Debentures of the
Company, designated as its 8.19% Senior Debentures Due 2009 (herein called the
"Debentures"), limited (except as otherwise provided in the Indenture mentioned
below) to the aggregate principal amount of $50,000,000, all issued or to be
issued under and pursuant to an indenture dated as of November 9, 1999 (herein
called the "Indenture"), duly executed and delivered by the Company to Bank One
Trust Company, NA, Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Debentures.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 662/3% in aggregate principal
amount of the Debentures at the time outstanding, evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
holders of the Debentures; provided, however, that no such supplemental
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indenture shall (i) extend the fixed maturity of any Debenture, or reduce the
rate or extend the time of payment of interest thereon, or reduce the principal
amount thereof or any premium thereon, or make the principal thereof or any
premium or interest thereon payable in any coin or currency other than that
hereinbefore provided, without the consent of the holder of each Debenture so
affected, or (ii) reduce the aforesaid percentage of Debentures, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of all Debentures then outstanding. It is also provided
in the Indenture that, prior to any declaration accelerating the maturity of the
Debentures, the holders of a majority in aggregate principal amount of the
Debentures at the time outstanding may on behalf of the holders of all of the
Debentures waive any past default or Event of Default under the Indenture and
its
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consequences except a default in the payment of interest or any premium on or
the principal of any of the Debentures. Any such consent or waiver by the holder
of this Debenture (unless revoked as provided in the Debenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debenture and any Debentures which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Debenture at the place, at the respective times, at the rate and in the
coin or currency herein prescribed.
The Debentures are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. At the office or
agency of the Company in the City of Chicago or the Borough of Manhattan, The
City of New York, and in the manner and subject to the limitations provided in
the Indenture, but without payment of any service charge, Debentures may be
exchanged for a like aggregate principal amount of Debentures of other
authorized denominations.
The Debentures may be redeemed at the option of the Company as a whole, or
from time to time in part, on any date prior to maturity, upon mailing a notice
of such redemption not less than twenty nor more than sixty days prior to the
date fixed for redemption to the holders of Debentures at their last registered
addresses, all as provided in the Indenture, at a redemption price equal to 100%
of the principal amount, together with accrued interest to the date fixed for
redemption; provided that if the date fixed for redemption is a May 1 or
November 1, then the interest payable on such date shall be paid to the holder
of record on the next preceding April 15 or October 15.
Upon due presentment for registration of transfer of this Debenture at the
office or agency of the Company in the City of Chicago or the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Company, the Trustee, any paying agent and any Debenture registrar may
deem and treat the registered holder hereof as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon made by anyone other than the
Company or any Debenture registrar), for the purpose of receiving payment
hereof, or on account hereof and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Debenture registrar shall be
affected by any notice to the contrary. All payments made to or upon the order
of such registered holder shall, to the extent of the sum or sums paid, satisfy
and discharge liability for monies payable on this Debenture.
No recourse for the payment of the principal of or any premium or interest
on this Debenture, or for any claim based hereon or otherwise in respect hereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any
Debenture, or because of the creation of any indebtedness represented thereby,
shall
4
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
AND WHEREAS, all acts and things necessary to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee, as in
this Indenture provided, and issued, the valid, binding and legal obligations of
the Company, and to constitute these presents a valid agreement according to its
terms, have been done and performed, and the execution of this Indenture and the
issue hereunder of the Debentures have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Debentures
are, and are to be, authenticated, issued and delivered, and in consideration of
the premises, of the purchase and acceptance of the Debentures by the holders
thereof and of the sum of one dollar duly paid to it by the Trustee at the
execution of these presents, the receipt whereof is hereby acknowledged, the
Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective holders from time to time of the Debentures, as
follows:
ARTICLE ONE
DEFINITIONS
Section 1.1. Definitions. The terms defined in this Section 1.01 (except
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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. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference therein defined in the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires) shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this Indenture.
Board of Directors: The term "Board of Directors" shall mean the Board of
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Directors of the Company or the Executive Committee of such Board.
Company: The term "Company" shall mean Zenith Electronics Corporation, a
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Delaware corporation and subject to the provisions of Article Eleven shall
include its successors and assigns.
Debenture or Debentures; Outstanding: The terms "Debenture" or "Debentures"
------------------------------------
shall mean any Debenture or Debentures, as the case may be, authenticated and
delivered under this Indenture.
5
The term "outstanding", when used with reference to Debentures, shall,
subject to the provisions of section 8.04, mean, as of any particular time, all
Debentures authenticated and delivered by the Trustee under this Indenture,
except
(a) Debentures theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Debentures, or portions thereof, for the payment or redemption of
which monies 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 such Debentures are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given as in
Article Three provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Debentures in lieu of or in substitution for which other Debentures
shall have been authenticated and delivered pursuant to the terms of Section
2.06, unless proof satisfactory to the Trustee is presented that any such
Debentures are held by bona fide holders in due course.
Debentureholder: The terms "Debentureholder", "holder of Debentures", or
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other similar terms, shall mean any person in whose name at the time a
particular Debenture is registered on the books of the Company kept for that
purpose in accordance with the terms hereof.
Event of Default: The term "Event of Default" shall mean any event
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specified in Section 6.01, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
Indenture: The term "Indenture" shall mean this instrument as originally
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executed or, if amended or supplemented as herein provided, as so amended or
supplemented.
Leveraged Lease Assets: The term "Leveraged Lease Assets" means those
----------------------
assets subject to that certain Lease Agreement dated as of March 26, 1997 by and
among Fleet Bank as Owner Trustee for Zenith Electronics Equipment Owner Trustee
1997-I, as Lessor, and the Company, as Lessee, as supplemented by that certain
Lease Supplement dated April 2, 1997 by and between Fleet Bank, as Lessor, and
the Company, as Lessee, and that certain Lease Agreement dated as of March 26,
1997 by and among Fleet Bank as Owner Trustee for Zenith Electronics Equipment
Owner Trustee 1997-II, as Lessor, and Zenith Electronics Corporation of Texas,
as Lessee, as supplemented by that certain Lease Supplement dated April 2, 1997
by and between Fleet Bank, as Lessor, and Zenith Electronics Corporation of
Texas, as Lessee, and any proceeds received in respect thereof.
LGE New Restructured Senior Note: The term "LGE New Restructured Senior
--------------------------------
Note" shall mean that certain note issued by the Company dated November 9, 1999
in favor of LG Electronics Inc.
6
LGE New Restructured Senior Note Documents: The term "LGE New Restructured
------------------------------------------
Senior Note Documents" shall mean all notes, documents, agreements or
instruments related to the LGE New Restructured Senior Note.
Officers' Certificate: The term "Officers' Certificate", when used with
---------------------
respect to the Company, shall mean a certificate signed by the Chairman, the
President or any Vice President and by the Controller, any Assistant Controller,
the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary
of the Company. Each such certificate shall include the statements provided for
in Section 14.05 if and to the extent required by the provisions of such
Section.
Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion
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in writing signed by legal counsel, who may be an employee of or counsel to the
Company, acceptable to the Trustee. Each such opinion shall include the
statements provided for in Section 14.05 if and to the extent required by the
provisions of such Section.
Person: The term "Person" shall mean a corporation, an association, a
------
partnership, an organization, an individual, a government or a political
subdivision thereof or a governmental agency.
Principal Office of the Trustee: The term "principal office of the
-------------------------------
Trustee", or other similar term shall mean the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered which at the date hereof is located at Xxx Xxxxx Xxxxx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000.
Responsible Officer: The term "Responsible Officer", when used with respect
-------------------
to the Trustee, shall mean any officer in the Corporate Trust Division of the
Trustee, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
Subsidiary: The term "Subsidiary" shall mean any corporation of which
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at least a majority of the outstanding stock having voting power under ordinary
circumstances to elect a majority of the board of directors of said corporation
shall at the time be owned by the Company or by the Company and one or more
Subsidiaries or by one or more Subsidiaries.
Trustee: The term "Trustee" shall mean Bank One Trust Company, NA, and,
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subject to the provisions of Article Seven hereof, shall also include its
successors and assigns as Trustee hereunder.
Trust Indenture Act of 1939: The term "Trust Indenture Act of 1939"
---------------------------
shall mean the Trust Indenture Act of 1939 as it was in force at the date of
execution of this Indenture, except as provided in Section 10.03.
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ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBENTURES
Section 1.2. Designation, Amount and Issue of Debentures. The Debentures
-------------------------------------------
shall be designated as 8.19% Senior Debentures Due 2009." Debentures not to
exceed the aggregate principal amount of $50,000,000 (except as provided in
Section 2.06) upon the execution of this Indenture, or from time to time
thereafter, may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Debentures to or upon the written order of the Company, signed by its President
or any of its Vice Presidents and its Treasurer or any of its Assistant
Treasurers, without any further action by the Company hereunder.
Section 1.3. Form of Debentures. The Debentures and the Trustee's
------------------
certificate of authentication to be borne by the Debentures shall be
substantially in the form as in this Indenture above recited. Any of the
Debentures may have imprinted thereon such legends or endorsements as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this 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 Debentures may be listed, or to conform to usage.
Section 1.4. Date and Denomination of Debentures. The Debentures shall
-----------------------------------
be issuable in registered form without coupons in denominations of $1,000 and
any integral multiple of $1,000. Every Debenture shall be dated the date of its
authentication and, except as provided in this Section, shall bear interest,
payable semiannually on May 1 and November 1 of each year, commencing May 1,
2000, from the May 1 or November 1, as the case may be, next preceding the date
of such Debenture to which interest has been paid or duly provided for, unless
the date of such Debenture is the date to which interest has been paid or duly
provided for, in which case from the date of such Debenture, or unless no
interest has been paid or duly provided for on the Debentures, in which case
from November 9, 1999, until payment of the principal sum has been made or duly
provided for. Notwithstanding the foregoing, when there is no existing default
in the payment of interest on the Debentures, all Debentures authenticated by
the Trustee after the close of business on the record date (as hereinafter in
this Section defined) for any interest payment date (May 1 or November 1, as the
case may be) and prior to such interest payment date shall be dated the date of
authentication but shall bear interest from such interest payment date;
provided, however, that if and to the extent that the Company shall default in
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the interest due on such interest payment date, then any such Debenture shall
bear interest from the May 1 or November 1, as the case may be, next preceding
the date of such Debenture to which interest has been paid or duly provided for,
unless no interest has been paid or duly provided for on the Debentures, in
which case from November 9, 1999.
The person in whose name any Debenture is registered at the close of
business on any record date (as hereinafter defined) 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 Debenture upon
any transfer or exchange subsequent to the record date and prior to such
interest payment date; provided, however, that if and to the extent the Company
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shall default in the payment of the interest due on such interest payment date,
such defaulted interest shall be paid to the persons in whose names outstanding
Debentures are registered on a subsequent record date established by notice
given by mail by or on behalf of the Company to the holders of Debentures not
less than fifteen days
8
preceding such subsequent record date. The term "record date" as used in this
Section with respect to any interest payment date shall mean the April 15 or
October 15, as the case may be, next preceding such interest payment date, or if
such day shall be a day on which banking institutions in the City of Chicago or
in The City of New York are authorized by law or executive order to close, the
next preceding day which shall not be a day on which such institutions are so
authorized to close.
Section 1.5. Execution of Debentures. The Debentures shall be signed in the
-----------------------
name and on behalf of the Company by the facsimile signature of its Chairman or
President or, in lieu thereof, of any of its Vice Presidents or its Treasurer
and attested by its Secretary or any Assistant Secretary, under its corporate
seal (which may be printed, engraved or otherwise reproduced thereon, by
facsimile or otherwise). For that purpose the Company may adopt and use the
facsimile signature of any person who has been or is or shall be such officer.
Only such Debentures as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee, shall
be entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Debenture executed by the
Company shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Debentures shall cease to be such officer before the Debentures so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Debentures nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Debentures had not ceased to be
such officer of the Company; and any Debenture may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Debenture, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.
Section 1.6. Exchange and Registration of Transfer of Debentures.
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Debentures may be exchanged for a like aggregate principal amount of Debentures
of other authorized denominations. Debentures to be exchanged shall be
surrendered at the office or agency to be maintained by the Company in the City
of Chicago or the Borough of Manhattan, The City of New York and the Company
shall execute and register and the Trustee shall authenticate and deliver in
exchange therefor the Debenture or Debentures which the Debentureholder making
the exchange shall be entitled to receive.
The Company shall keep, at said office or agency in the City of Chicago
and the City of New York, a register in which, subject to such reasonable
regulations as it may prescribe, the Company shall register Debentures and shall
register the transfer of Debentures as in this Article Two provided. Such
register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
such register shall be open for inspection by the Trustee. Upon due presentment
for registration of transfer of any Debenture at such office or agency
maintained by the Company in the City of Chicago or the Borough of Manhattan,
The City of New York, the Company shall execute and register and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Debenture or Debentures for an equal aggregate principal amount.
9
All Debentures presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required to exchange or register a transfer of (a)
any Debentures for a period of 15 days next preceding any selection of
Debentures to be redeemed or (b) any Debentures selected, called or being called
for redemption.
Section 1.7. Mutilated, Destroyed, Lost or Stolen Debentures. In case
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any temporary or definitive Debenture shall become mutilated or be destroyed,
lost or stolen, the Company in its discretion may execute, and upon its request
the Trustee shall authenticate and deliver, a new Debenture, bearing a number
not contemporaneously outstanding, in exchange and substitution for the
mutilated Debenture, or in lieu of and in substitution for the Debenture so
destroyed, lost or stolen. In every case the applicant for a substituted
Debenture shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Debenture and of the ownership thereof.
The Trustee may authenticate any such substituted Debenture and deliver the
same upon the written request or authorization of any officer of the Company.
Upon the issuance of any substituted Debenture, 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
and in addition a further sum not exceeding $2 for each Debenture so issued in
substitution. In case any Debenture which has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Company may, instead
of issuing a substitute Debenture, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Debenture) if the
applicant for such payment shall furnish to the Company and to the Trustee such
security or indemnity as may be required by them to save each of them harmless
and, in case of destruction, loss or theft, evidence satisfactory to the Company
and the Trustee of the destruction, loss or theft of such Debenture and of the
ownership thereof.
Every substituted Debenture issued pursuant to the provisions of this
Section 2.06 by virtue of the fact that any Debenture is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Debenture shall be found at any
time, and shall be entitled to all the benefits of the Indenture equally and
proportionately with any and all other Debentures duly issued hereunder. All
Debentures 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 Debentures and shall preclude, to the
extent permitted under applicable law, any and all other rights or remedies
notwithstanding any law or statute existing
10
or hereafter enacted to the contrary with respect to the replacement or payment
or conversion of negotiable instruments or other securities without their
surrender.
Section 1.8. Temporary Debentures. Pending the preparation of definitive
--------------------
Debentures, the Company may execute and the Trustee shall authenticate and
deliver temporary Debentures (printed or lithographed). Temporary Debentures
shall be issuable in any authorized denomination, and substantially in the form
of the definitive Debentures but with such omissions, insertions and variations
as may be appropriate for temporary Debentures, all as may be determined by the
Company. Every such temporary Debenture shall be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the same
effect, as the definitive Debentures. Without unreasonable delay the Company
will execute and deliver to the Trustee definitive Debentures and thereupon any
or all temporary Debentures may be surrendered in exchange therefor, at the
principal office of the Trustee in the City of Chicago or the office or agency
of the Company in the Borough of Manhattan, The City of New York, and the
Trustee shall authenticate and deliver in exchange for such temporary Debentures
an equal aggregate principal amount of definitive Debentures. Such exchange
shall be made by the Company at its own expense and without any charge therefor.
Until so exchanged, the temporary Debentures shall in all respects be entitled
to the same benefits under this Indenture as definitive Debentures authenticated
and delivered hereunder.
Section 1.9. Cancellation of Debentures Paid, etc. All Debentures
------------------------------------
surrendered for the purpose of payment, redemption, exchange or registration of
transfer, or in discharge shall, if surrendered to the Company or any paying
agent or any Debenture registrar, be surrendered to the Trustee and promptly
cancelled by it, or, if surrendered to the Trustee, shall be promptly cancelled
by it, and no Debentures shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall destroy
cancelled Debentures and deliver a certificate of such destruction to the
Company. If the Company shall acquire any of the Debentures, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debentures unless and until the same are
surrendered to the Trustee for cancellation.
ARTICLE THREE
REDEMPTION OF DEBENTURES
Section 1.10. Redemption Prices. The Company may, at its option, redeem all
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or from time to time any part of the Debentures on any date prior to maturity,
upon notice as set forth in Section 3.02, at a redemption price equal to 100% of
the principal amount thereof, together with accrued interest to the date fixed
for redemption; provided that if the date fixed for redemption is May 1 or
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November 1, then the interest payable on such date shall be paid to the holder
of record on the next preceding April 15 or October 15.
Section 1.11. Notice of Redemption; Selection of Debentures. In case the
---------------------------------------------
Company shall desire to exercise the right to redeem all, or, as the case
may be, any part of the Debentures pursuant to Section 3.01, it shall fix a date
for redemption and it, or, at its request, the Trustee in the name of and at the
expense of the Company, shall mail or cause to be mailed a notice of such
redemption at
11
least 20 and not more than 60 days prior to the date fixed for redemption to the
holders of Debentures so to be redeemed as a whole or in part at their last
addresses as the same appear on the registry books of the Company. Such mailing
shall be by first class mail. The notice if mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
holder received such notice. In any case, failure to give such notice by mail or
any defect in the notice to the holder of any Debenture designed for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture.
Each such notice of redemption shall specify the date fixed for redemption,
the place or places of payment, that payment will be made upon presentation and
surrender of such Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If fewer than all the Debentures are to be redeemed, the notice of
redemption shall identify the Debentures to be redeemed. In case any Debenture
is to be redeemed in part only, the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Debenture, a new Debenture
or Debentures in principal amount equal to the unredeemed portion thereof will
be issued.
Prior to the redemption date specified in the notice of redemption given as
provided in this Section, the Company will deposit with the Trustee or with one
or more paying agents an amount of money sufficient to redeem on the redemption
date all the Debentures so called for redemption at the redemption price,
together with accrued interest to the date fixed for redemption. If fewer than
all the Debentures are to be redeemed, it will give the Trustee notice not less
than 45 days prior to the redemption date as to the aggregate principal amount
of Debentures to be redeemed.
If fewer than all the Debentures are to be redeemed or if any Debentures
are to be redeemed in part only, the Trustee shall select, in such manner as in
its sole discretion it shall deem appropriate and fair, the Debentures or
portions thereof to be redeemed. The Debentures (or portions thereof) so
selected shall be deemed duly selected for redemption for all purposes hereof.
Section 1.12. Payment of Debentures Called for Redemption. If notice of
-------------------------------------------
redemption has been given as above provided, the Debentures or portions of
Debentures with respect to which such notice has been given shall become due and
payable on the date and at the place or places stated in such notice at the
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Company shall default in the
payment of such Debentures at the redemption price, together with interest
accrued to said date) interest on the Debentures or portions of Debentures so
called for redemption shall cease to accrue. On presentation and surrender of
such Debentures at a place of payment in said notice specified, the said
Debentures or the specified portions thereof shall be paid and redeemed by the
Company at the redemption price, together with interest accrued thereon to the
date fixed for redemption.
Upon presentation of any Debenture redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the holder thereof, at
the expense of the Company, a new Debenture or Debentures, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Debentures so presented.
12
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 1.13. Payment of Principal, Premium and Interest. The Company
------------------------------------------
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and premium, if any, and interest on each of the Debentures at
the places, at the respective times and in the manner provided herein and in the
Debentures.
Section 1.14. Offices for Notices and Payments, etc. So long as any of
-------------------------------------
the Debentures remain outstanding, the Company will maintain in the City of
Chicago and in the Borough of Manhattan, The City of New York, an office or
agency where the Debentures may be presented for payment, and an office or
agency where the Debentures may be presented for registration of transfer and
for exchange as in this Indenture provided and an office or agency where notices
and demands to or upon the Company in respect of the Debentures or of this
Indenture may be served. The Company will give to the Trustee written notice of
the location of each such office or agency and of any change of location
thereof. In case the Company shall fail to maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
principal office of the Trustee in the City of Chicago and the office or agency
of the Trustee in the Borough of Manhattan, The City of New York, and the
Company hereby appoints the Trustee at the principal office of the Trustee in
the City of Chicago and the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, its agent to receive all such presentations and
demands.
Section 1.15. Appointments to Fill Vacancies in Trustee's Office. The
--------------------------------------------------
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 1.16. Provision as to Paying Agent. (a) If the Company shall
----------------------------
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.04,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest on the
Debentures (whether such sums have been paid to it by the Company or by any
other obligor on the Debentures) in trust for the benefit of the holders of
the Debentures; and
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debentures) to make any payment of
the principal of and premium, if any, or interest on the Debentures when
the same shall be due and payable.
(2) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest on the
Debentures, set aside, segregate and hold in trust for the benefit of the
holders of the Debentures a sum sufficient to pay such principal and
13
premium, if any, or interest so becoming due and will notify the Trustee of any
failure to take such action and of any failure by the Company (or by any other
obligor under the Debentures) to make any payment of the principal of and
premium, if any, or interest on the Debentures when the same shall become due
and payable.
(3) Anything in this Section 4.04 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 it, or any paying agent hereunder, as
required by this Section 4.04, such sums to be held by the Trustee upon the
trusts herein contained.
(4) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
Sections 12.03 and 12.04.
Section 1.17. Most Favored Lender Provision. (a) If the Company shall enter
-----------------------------
into an amendment of or waiver to, or other agreement or arrangement
supplemental to, the LGE New Restructured Senior Note Documents which shall
provide for any Additional Covenants or Additional Defaults, then such
Additional Covenants or Additional Defaults shall be deemed to have been
incorporated herein as if fully set forth herein with such changes as may be
necessary to make such Additional Covenants or Additional Defaults applicable to
this Indenture without any further requirement for notice or action on the part
of the Company or any holder of Debentures. For purposes of this paragraph (a),
(1) "Additional Covenant" means an affirmative or negative covenant
or similar restriction applicable to the Company or any of its Subsidiaries
which requires the maintenance of any particular financial condition or the
achievement of any particular financial performance or which prohibits or
limits actions which the Company or any such Subsidiary could otherwise
take (or permits any such action only upon satisfaction of specified
conditions) or requires the taking of any action which the Company or any
such Subsidiary would not otherwise be required to take.
(2) "Additional Default" means any provision which would permit LGE
to accelerate the maturity of, require the Company or any Subsidiary to buy
or indemnify LGE in respect of, or otherwise terminate the LGE New
Restructured Senior Note Documents prior to the original maturity or
expiration date of the indebtedness evidenced thereby.
(2) If the Company shall enter into an amendment of or waiver to, or other
agreement or arrangement supplemental to, the LGE New Restructured Senior Note
Documents which shall provide for any earlier time of repayment or prepayment of
any indebtedness owing in respect of the LGE New Restructured Senior Note than
that required as of the date hereof (taking into account any mandatory
prepayment provisions contained in the LGE New Restructured Senior Note
Documents as of the date hereof) (regardless of whether such repayment or
prepayment obligation arises from dispositions of assets, a mandatory sinking
fund or repayment schedule or otherwise), this Indenture shall be deemed to have
been amended to provide for repayment or prepayment of a proportional principal
amount of the Debentures at the new time of repayment or prepayment of the
indebtedness owing in respect of the LGE New Restructured Senior Note.
14
The change to this Indenture deemed to have been effected pursuant to this
paragraph (b) shall not require any notice or action on the part of the Company
or any holder of Debentures.
(3) The Company shall not enter into an amendment to or waiver to, or
other agreement or arrangement supplemental to, the LGE New Restructured Senior
Note Documents which shall provide for a pledge or lien on any real or personal
property of the Company or any of its Subsidiaries (other than in respect of the
Leveraged Lease Assets). If, notwithstanding the foregoing, the Company shall
enter into such an amendment or waiver, it shall take such action as shall be
necessary or appropriate to grant an equal and ratable lien on such real or
personal property in favor of the Trustee for the benefit of the holders of the
Debentures, but such amendment or waiver shall nevertheless constitute a failure
on the part of the Company to observe and perform a covenant and agreement set
forth in this Indenture for purposes of Section 6.01(c).
(4) If the Company shall prepay the LGE New Restructured Senior Note in
whole or in part at its option at any time before a mandatory prepayment is due
in respect thereof under the terms of the LGE New Restructured Senior Note
Documents as of the date hereof, it shall simultaneously prepay a proportional
principal amount of the Debentures.
(5) If the Company shall make any cash payment in respect of interest
on the LGE New Restructured Senior Note at any time (except to the extent such
payment of interest is required to be made in cash under the terms of the LGE
New Restructured Senior Note Documents as of the date hereof), it shall make a
prepayment of the Debentures in the amount that would be required pursuant to
the foregoing paragraph (d) if such cash payment had been a prepayment of
principal of the LGE New Restructured Senior Note.
ARTICLE FIVE
DEBENTUREHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
Section 1.18. Debentureholders Lists. The Company covenants and agrees
----------------------
that it will furnish or cause to be furnished to the Trustee, semiannually, not
more than 15 days after each April 15 and October 15 in each year beginning with
April 15, 2000, and at such other times as the Trustee may request in writing,
within thirty days after receipt by the Company of any such request, a list in
such form as the Trustee may reasonably require of the names and addresses of
the holders of Debentures as of a date not more than fifteen days prior to the
time such information is furnished, except that no such list need be furnished
so long as the Trustee is acting as Debenture registrar.
Section 1.19. Preservation and Disclosure of Lists. (a) The Trustee shall
------------------------------------
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Debentures contained in the most
recent list furnished to it as provided in Section 5.01. The Trustee may destroy
any list furnished to it as provided in Section 5.01 upon receipt of a new list
so furnished.
15
(1) In case three or more holders of Debentures (hereinafter referred to
as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Debenture for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Debentures with respect to their rights under this Indenture or under the
Debentures 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,
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of
this Section 5.02, or
(2) inform such applicants as to the approximate number of holders of
Debentures whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02, and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Debentureholder whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02 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 Securities and Exchange Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the holders
of Debentures or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If said 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, said 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 Debentureholders 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.
(2) Each and every holder of the Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any paying agent nor the Debenture registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Debentures in accordance with the provisions of
subsection (b) of this Section 5.02, 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 said
subsection (b).
Section 1.20. Reports by the Company. (a) The Company covenants and agrees
----------------------
to file with the Trustee, within fifteen days after the Company is required to
file the same with the Securities and
16
Exchange Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as said Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with said Commission pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and said Commission, in
accordance with rules and regulations prescribed from time to time by said
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to section 13 of the Securities Exchange
Act of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(1) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and regulations
prescribed from time to time by said Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as may be required from
time to time by such rules and regulations.
(2) The Company covenants and agrees to transmit by mail to all holders of
Debentures, as the names and addresses of such holders appear upon the registry
books of the Company, within thirty days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section 5.03 as
may be required by rules and regulations prescribed from time to time by the
Securities and Exchange Commission.
Section 1.21. Reports by the Trustee. (a) On or before July 15, 2000, and
----------------------
on or before July 15 in every year thereafter, so long as any Debentures are
outstanding hereunder, the Trustee shall transmit to the Debentureholders, as
hereinafter in this Section 5.04 provided, a brief report dated as of the
preceding May 15 with respect to:
(1) its eligibility under Section 7.09, and its qualification under
Section 7.08, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under such Sections, a written
statement to such effect;
(2) the character and amount of advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien or charge, prior
to that of the Debentures, on any property or funds held or collected by it
as Trustee, except that the Trustee shall not be required (but may elect)
to state such advances if such advances so remaining unpaid aggregate not
more than one-half of one percent of the principal amount of the Debentures
outstanding on the date of such report;
(3) the amount, interest rate, and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Debentures) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in paragraphs (2), (3), (4) or
(6) of subsection (b) of Section 7.13;
17
(4) the property and funds, if any, physically in the possession of
the Trustee, as such, on the date of such report;
(5) any additional issue of Debentures which the Trustee has not
previously reported; and
(6) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Debentures, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance
with the provisions of Section 6.08.
(2) The Trustee shall transmit to the Debentureholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such), since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
5.04 (or, if no such report has yet been so transmitted, since the date of
execution of this Indenture), for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Debentures on property or funds held
or collected by it as Trustee, and which it has not previously reported pursuant
to this subsection, except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at any time
aggregate ten percent or less of the principal amount of Debentures outstanding
at such time, such report to be transmitted within ninety days after such time.
(3) Reports pursuant to this Section 5.04 shall be transmitted by mail
to all holders of Debentures as the names and addresses of such holders appear
upon the registry books of the Company.
(4) A copy of each such report shall, at the time of such transmission
to Debentureholders, be filed by the Trustee with each stock exchange upon which
the Debentures are listed and also with the Securities and Exchange Commission.
The Company will notify the Trustee when and as the Debentures become listed on
any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
Section 1.22. Events of Default. In case one or more of the following
-----------------
Events of Default shall have occurred and be continuing:
(1) default in the payment of any instalment of interest upon any of the
Debentures as and when the same shall become due and payable, and continuance of
such default for a period of thirty days; or
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(2) default in the payment of the principal of, or premium, if any, on any
of the Debentures as and when the same shall become due and payable either at
maturity or in connection with any redemption, by declaration or otherwise; or
(3) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the
Debentures or in this Indenture continued for a period of ninety days after the
date on which written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or to the Company
and the Trustee by the holders of at least twenty-five percent in aggregate
principal amount of the Debentures at the time outstanding; or
(4) an event of default, as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be secured or
evidenced, any indebtedness of the Company or a Subsidiary (whether such
indebtedness now exists or shall hereafter be created or incurred) shall occur
and shall consist of default in the payment of such indebtedness at the maturity
thereof or shall result in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due and payable,
and such default in payment is not cured or such acceleration shall not be
rescinded or annulled within 10 days after written notice to the Company from
the Trustee or to the Company and to the Trustee from the holders of at least
10% in aggregate principal amount of the Debentures at the time outstanding;
provided that it shall not be an Event of Default if the principal amount of
--------
indebtedness which is not paid at maturity or the maturity of which is
accelerated is less than $5,000,000; provided further that if, prior to a
-------- -------
declaration of acceleration of the maturity of the Debentures or the entry of
judgment in favor of the Trustee in a suit pursuant to Section 6.02, such
default 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 of the
Debentures, and provided further, that, subject to Sections 6.08 and 7.01, the
Trustee shall not be charged with knowledge of any such default unless written
notice of such default shall have been given to the Trustee by the Company, by a
holder or an agent of a holder of any such indebtedness, by the trustee then
acting under any indenture or other instrument under which such default shall
have occurred, or by the holders of at least five percent in aggregate principal
amount of the Debentures at the time outstanding; or
(5) if a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or of substantially all of its
property or winding-up or liquidation of its affairs, and such decree or order
shall remain unstayed and in effect for a period of ninety consecutive days; or
(6) if the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect or shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or of substantially all of its property, or shall make
any general assignment for the benefit of creditors;
19
then and in each and every such case, unless the principal of all of the
Debentures shall have already become due and payable, either the Trustee or the
holders of not less than twenty-five percent in aggregate principal amount of
the Debentures then outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by Debentureholders), may declare the principal of
all the Debentures to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Debentures contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after the principal of the Debentures shall have been so declared
due and payable, and before any judgment or decree for the payment of the monies
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
instalments of interest upon all of the Debentures and the principal of and
premium, if any, on any and all Debentures which shall have become due otherwise
than by acceleration (with interest on overdue instalments of interest (to the
extent that payment of such interest is enforceable under applicable law) and on
such principal and premium, if any, at the rate borne by the Debentures, to the
date of such payment or deposit) and the expenses of the Trustee, and any and
all defaults under this Indenture, other than the nonpayment of principal of and
accrued interest on Debentures which shall have become due by acceleration,
shall have been remedied -- then and in every such case the holders of a
majority in aggregate principal amount of the Debentures then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceeding had been taken.
Section 1.23. Payment of Debentures on Default; Suit Therefor. The Company
-----------------------------------------------
covenants that (a) in case default shall be made in the payment of any
instalment of interest upon any of the Debentures as and when the same shall
become due and payable, and such default shall have continued for a period of
thirty days, or (b) in case default shall be made in the payment of the
principal of and premium, if any, on any of the Debentures as and when the same
shall have become due and payable whether at maturity of the Debentures or in
connection with any redemption, by declaration or otherwise--then, upon demand
of the Trustee, the Company will pay to the Trustee, for the benefit of the
holders of the Debentures, the whole amount that then shall have become due and
payable on all such Debentures for principal and premium, if any, or interest,
or both, as the case may be, with interest upon the overdue principal and
premium, if any, and (to the extent that payment of such interest is enforceable
under applicable law) upon the overdue instalments of interest at the rate borne
by the Debentures; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agent, attorneys and counsel, and any expenses
or liabilities incurred by the Trustee hereunder other than through its
negligence or bad faith.
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In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the
Debentures and collect in the manner provided by law out of the property of the
Company or any other obligor on the Debentures wherever situated the monies
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Debentures under Title
11 of the United States Code or any other applicable law, or in case a receiver
or trustee shall have been appointed for the property of the Company or such
other obligor, or in the case of any other similar judicial proceedings relative
to the Company or other obligor upon the Debentures, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Debentures shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section 6.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Debentures, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
of the Debentureholders allowed in such judicial proceedings relative to the
Company or any other obligor on the Debentures, its or their creditors, or its
or their property, and to collect and receive any monies or other property
payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the
Debentureholders 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
Debentureholders, to pay to the Trustee any amount due it for compensation and
expenses, including counsel fees incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses and counsel fees out of the estate in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, monies, securities
and other property which the holders of the Debentures may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or adopt on behalf of any Debentureholder any plan of
reorganization or arrangement, affecting the Debentures or the rights of any
Debentureholder, or to authorize the Trustee to vote in respect of the claim of
any Debentureholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Debentures, may be enforced by the Trustee without the possession of
any of the Debentures, or the production thereof on any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
Debentures.
21
Section 1.24. Application of Monies Collected by Trustee. Any monies
------------------------------------------
collected by the Trustee shall be applied in the order following, at the date or
dates fixed by the Trustee for the distribution of such monies, upon
presentation of the several Debentures, and stamping thereon the payment, if
only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
and reasonable compensation to the Trustee, its agents, attorneys
and counsel, and of all other expenses and liabilities incurred,
and all advances made, by the Trustee except as a result of its
negligence or bad faith;
SECOND: In case the principal of the outstanding Debentures
shall not have become due and be unpaid, to the payment of
interest on the Debentures in the order of the maturity of the
instalments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
instalments of interest at the rate borne by the Debentures, such
payments to be made ratably to the persons entitled thereto;
THIRD: In case the principal of the outstanding Debentures
shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the
Debentures for principal and premium, if any, and interest, with
interest on the overdue principal and premium, if any, and (to
the extent that such interest has been collected by the Trustee)
upon overdue instalments of interest at the rate borne by the
Debentures; and in case such monies shall be insufficient to pay
in full the whole amounts so due and unpaid upon the Debentures,
then to the payment of such principal and premium, if any, and
interest without preference or priority of principal and premium,
if any, over interest, or of interest over principal and premium,
if any, or of any instalment of interest over any other
instalment of interest, or of any Debenture over any other
Debenture, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest.
Section 1.25. Proceedings by Debentureholders. No holder of any Debenture
--------------------------------
shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such holder previously
shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the holders of not less than
twenty-five percent in aggregate principal amount of the Debentures then
outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for sixty days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding, it being understood and intended, and being expressly covenanted by
the taker and holder of every Debenture with every other taker and holder and
the Trustee, that no one or more holders of Debentures shall have any right in
any manner whatever by virtue of or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other holder of such
Debentures, or to obtain or seek to obtain priority over or preference to any
other such holder, or to
22
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Debentures.
Notwithstanding any other provisions in this Indenture (including, without
limitation, the preceding paragraph of this Section 6.04), however, the right of
any holder of any Debenture to receive payment of the principal of and interest
on such Debenture, on or after the respective due dates expressed in such
Debenture, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company shall not be impaired or
affected without the consent of such holder.
Section 1.26. Proceedings by Trustee. In case of an Event of Default
----------------------
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or other wise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 1.27. Remedies Cumulative and Continuing. All powers and remedies
----------------------------------
given by this Article Six to the Trustee or to the Debentureholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
holders of the Debentures, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any holder of any of
the Debentures to exercise any right or power accruing upon any default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article Six or by law to the Trustee or to the Debentureholders
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Debentureholders.
Section 1.28. Direction of Proceedings and Waiver of Defaults by
--------------------------------------------------
Majority of Debenture holders. The holders of a majority in aggregate principal
-----------------------------
amount of the Debentures at the time outstanding determined in accordance with
Section 8.04 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; provided, however, that (subject to
-------- -------
the provisions of Section 7.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall be advised by counsel that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or Responsible Officers shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability. Prior to any declaration accelerating the maturity of the
Debentures, the holders of a majority in aggregate principal amount of the
Debentures at the time outstanding may on behalf of the holders of all of the
Debentures waive any past default or Event of Default hereunder and its
consequences except a default in the payment of interest, or premium, if any,
on, or the principal of, the Debentures. Upon any such waiver the Company, the
Trustee and the holders of the Debentures shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default
23
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default hereunder shall have been waived as permitted by this
Section 6.07, said default or Event of Default shall for all purposes of the
Debentures and this Indenture be deemed to have been cured and to be not
continuing.
Section 1.29. Notice of Defaults. The Trustee shall, within ninety days
------------------
after the occurrence of a default, mail to all Debentureholders, as the names
and addresses of such holders appear upon the registry books of the Company,
notice of all defaults known to any Responsible Officer of the Trustee, unless
such defaults shall have been cured before the giving of such notice (the term
"defaults" for the purpose of this Section 6.08 being hereby defined to be the
events specified in clauses (a), (b), (c), (d), (e) and (f) of Section 6.01, not
including periods of grace, if any, provided for therein); and provided that,
--------
except in the case of default in the payment of the principal of or premium, if
any, or interest on any of the Debentures, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Debentureholders.
Section 1.30. Undertaking to Pay Costs. All parties to this Indenture
------------------------
agree, and each holder of any Debenture by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided, that the provisions of this Section 6.09 shall
--------
not apply to any suit instituted by the Trustee, to any suit instituted by any
Debentureholder, or group of Debentureholders, holding in the aggregate more
than ten percent in principal amount of the Debentures outstanding, or to any
suit instituted by any Debentureholder for the enforcement of the payment of the
principal of or premium, if any, or interest on any Debenture on or after the
due date expressed in such Debenture.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 1.31. Duties and Responsibilities of Trustee. The Trustee, prior to
--------------------------------------
the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default 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, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
24
(1) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred:
(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 any such certificates or opinions which
by any provisions 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;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Debentures at the
time outstanding determined as provided in Section 8.04 relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such
funds or adequate indemnity against risk or liability is not reasonably assured
to it.
Section 1.32. Reliance on Documents, Opinions, etc. Except as otherwise
------------------------------------
provided in Section 7.01,
(1) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture or other paper or document believed by
it to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
25
(3) The Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or omitted by it hereunder in good faith and in accordance with
such advice or Opinion of Counsel;
(4) 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 Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(5) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(6) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or document unless
requested in writing to do so by the holders of not less than a majority in
principal amount of the Debentures 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,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding; and
(7) 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 by it with due care
hereunder.
Section 1.33. No Responsibility for Recitals, etc. The recitals contained
-----------------------------------
herein and in the Debentures (except in 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
Debentures. The Trustee shall not be accountable for the use or application by
the Company of any Debentures or the proceeds of any Debentures authenticated
and delivered by the Trustee in conformity with the provisions of this
Indenture.
Section 1.34. Trustee, Paying Agents or Registrar May Own Debentures.
------------------------------------------------------
The Trustee or any paying agent or Debenture registrar, in its individual or any
other capacity, may become the owner or pledgee of Debentures with the same
rights it would have if it were not Trustee, paying agent or Debenture
registrar.
Section 1.35. Monies to be Held in Trust. Subject to the provisions of
--------------------------
Section 12.04, all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received.
26
Section 1.36. Compensation and Expenses of Trustee. The Company covenants
------------------------------------
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the 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 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. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and 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. The obligations
of the Company under this Section 7.06 to compensate the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be secured
by a lien prior to that of the Debentures upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Debentures.
Section 1.37. Officers' Certificate as Evidence. 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 or omitting any action hereunder, such
matter (unless other evidence in respect thereof be 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 or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 1.38. Conflicting Interest of Trustee. (a) If the Trustee has or
--------------------------------
shall acquire any conflicting interest, as defined in this Section 7.08, it
shall, within ninety days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign in the manner and
with the effect specified in Section 7.10.
(1) In the event that the Trustee shall fail to comply with the provisions
of subsection (a) of this Section 7.08, the Trustee shall, within ten days after
the expiration of such ninety-day period, transmit notice of such failure to all
holders of Debentures, as the names and addresses of such holders appear upon
the registry books of the Company.
(2) For the purpose of this Section 7.08, the Trustee shall be deemed to
have a conflicting interest if:
(1) the Trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the Company, are outstanding, unless such other indenture is
a collateral trust indenture under which the only collateral consists of
Debentures issued under this Indenture; provided that there shall
--------
27
be excluded from the operation of this paragraph any other indenture or
indentures under which other securities, or certificates of interest or
participation in other securities of the Company, are outstanding if (i)
this Indenture and such other indenture or indentures are wholly unsecured
and such other indenture or indentures are hereafter qualified under the
Trust Indenture Act of 1939, unless the Securities and Exchange Commission
shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture Act of
1939 that differences exist between the provisions of this Indenture and
the provisions of such other indenture or indentures which are so likely to
involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture and such other indenture
or indentures, or (ii) the Company shall have sustained the burden of
proving, on application to the Securities and Exchange Commission and after
opportunity for hearing thereon, that the trusteeship under this Indenture
and such other indenture is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such under
one of such indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Debentures issued under this Indenture or an underwriter
for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (A) one individual may be a director and/or an executive officer of
the Trustee and a director and/or an executive officer of the Company, but
may not be at the same time an executive officer of both the Trustee and
the Company; (B) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a director
and/or an executive officer of the Trustee and a director of the Company;
and (C) the Trustee may be designated by the Company or by an underwriter
for the Company to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent, or depositary, or in
any other similar capacity, or, subject to the provisions of paragraph (1)
of this subsection (c), to act as trustee whether under an indenture or
otherwise;
(5) ten percent or more of the voting securities of the Trustee is
beneficially owned by the Company or by any director, partner, or executive
officer thereof, or twenty percent or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
ten percent or more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any director, partner,
or executive officer thereof, or is beneficially owned, collectively, by
any two or more such persons;
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(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, (A) five percent or more of
the voting securities, or ten percent or more of any other class of
security, of the Company, not including the Debentures issued under this
Indenture and securities issued under any other indenture under which the
Trustee is also trustee, or (B) ten percent or more of any class of
security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, five percent or more of the
voting securities of any person who, to the knowledge of the Trustee, owns
ten percent or more of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, ten percent or more of any
class of security of any person who, to the knowledge of the Trustee, owns
fifty percent or more of the voting securities of the Company; or
(9) the Trustee owns on May 15 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
twenty-five percent or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a specified percentage
of which would have constituted a conflicting interest under paragraph (6),
(7), or (8) of this subsection (c). As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions of
the preceding sentence shall not apply, for a period of two years from the
date of such acquisition, to the extent that such securities included in
such estate do not exceed twenty-five percent of such voting securities or
twenty-five percent of any such class of security. Promptly after May 15,
in each calendar year, the Trustee shall make a check of its holdings of
such securities in any of the above-mentioned capacities as of such May 15.
If the Company fails to make payment in full of principal of or interest on
any of the Debentures when and as the same become due and payable, and such
failure continues for thirty days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the above-
mentioned capacities as of the date of the expiration of such thirty-day
period and, after such date, notwithstanding the foregoing provisions of
this paragraph (9), all such securities so held by the Trustee, with sole
or joint control over such securities vested in it, shall, but only so long
as such failure shall continue, be considered as though beneficially owned
by the Trustee for the purposes of paragraphs (6), (7) and (8) of this
subsection (c).
The specifications of percentages in paragraphs (5) to (9), inclusive, of
this subsection (c) shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c). For the purposes of paragraphs (6),
(7), (8) and (9) of this subsection (c) only, (A) the terms "security" and
"securities" shall include only such securities as are generally known as
corporate securities, but shall not include any note or other evidence of
29
indebtedness issued to evidence an obligation to repay monies lent to a person
by one or more banks, trust companies or banking firms, or any certificate of
interest or participation in any such note or evidence of indebtedness; (B) an
obligation shall be deemed to be in default when a default in payment of
principal shall have continued for thirty days or more and shall not have been
cured; and (C) the Trustee shall not be deemed to be the owner or holder of (i)
any security which it holds as collateral security (as trustee or otherwise) for
an obligation which is not in default as defined in clause (B) above, or (ii)
any security which it holds as collateral security under this Indenture,
irrespective of any default hereunder, or (iii) any security which it holds as
agent for collection, or as custodian, escrow agent, or depositary, or in any
similar representative capacity.
Except as provided in the next preceding paragraph hereof, the word
"security" or "securities" as used in this Indenture shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral trust
certificate, pre-organization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas or other mineral rights, or,
in general, any interest or instrument commonly known as a "security" or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or purchase,
any of the foregoing.
(3) For the purposes of this Section 7.08:
(1) The term "underwriter" when used with reference to the Company
shall mean every person who, within three years prior to the time as of
which the determination is made, has purchased from the Company with a view
to, or has offered or sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time, or
has participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any director of a corporation or
any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" shall mean any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person.
30
(5) The term "Company" shall mean any obligor upon the Debentures.
(6) The term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
The percentages of voting securities and other securities specified in this
Section 7.08 shall be calculated in accordance with the following provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section 7.08 (each of
whom is referred to as a "person" in this paragraph) means such amount of
the outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(1) Securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(2) Securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(3) Securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise;
(4) Securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be
-------- -------
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof;
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of
31
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
Section 1.39. Eligibility of Trustee. The Trustee hereunder shall at all
----------------------
times be a corporation organized and doing business under the laws of the United
States or any State or Territory thereof or of the District of Columbia
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least five million dollars, subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority
and having its principal office and place of business in the City of Chicago or
in The City of New York. 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 7.09,
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. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 1.40. Resignation or Removal of Trustee. (a) The Trustee may at
---------------------------------
a time resign by giving written notice of such resignation to the Company and by
mailing notice thereof to the holders of Debentures at their addresses as they
shall appear on the registry books of the Company. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within sixty days after the mailing of such notice of
resignation to the Debentureholders, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Debentureholder who has been a bona fide holder of a Debenture or Debentures
for at least six months may, subject to the provisions of Section 6.09, on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(1) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the
Company or by any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder, or
32
(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, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.09, any Debentureholder who has been a bona fide holder
of a Debenture or Debentures for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(2) The holders of a majority in aggregate principal amount of the
Debentures at the time outstanding may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor
trustee unless within ten days after such nomination the Company objects
thereto, in which case the Trustee so removed or any Debentureholder, upon the
terms and conditions and otherwise as in subdivision (a) of this Section 7.10
provided, may petition any court of competent jurisdiction for an appointment of
a successor trustee.
(3) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 7.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.11.
Section 1.41. Acceptance by Successor Trustee. Any successor trustee
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appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, 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, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
7.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of
Section 7.06.
No successor trustee shall accept appointment as provided in this Section
7.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 7.11, the Company shall mail notice of the succession of such trustee
hereunder to the holders of Debentures
33
at their addresses as they shall appear on the registry books of the Company. If
the Company fails to mail such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
Section 1.42. Succession by Merger, etc. 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 of the trust business of the Trustee, shall be the successor to the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, 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 Debentures 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
Debentures so authenticated; and in case at that time any of the Debentures
shall not have been authenticated, any successor to the Trustee may authenticate
such Debentures 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 the Debentures or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
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right to adopt the certificate of authentication of any predecessor Trustee or
authenticate Debentures in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
Section 1.43. Limitation on Rights of Trustee as a Creditor. (a) Subject to
---------------------------------------------
the provisions of subsection (b) of this Section 7.13, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within four months prior to a default, as defined in subsection (c) of
this Section 7.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee, shall set apart and hold in a special
account for the benefit of the Trustee individually, the holders of the
Debentures and the holders of other indenture securities (as defined in
paragraph (2) of subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four-month period and valid as against
the Company and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in paragraph (2)
of this Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by
or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
------- -------
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
34
(1) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law;
(2) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four-month period;
(3) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four-
month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section 7.13, would occur within four months; or
(4) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security of such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such four-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Debentureholders and the holders of other indenture securities in
such manner that the Trustee, the Debentureholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Debentureholders, and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, whether such
distribution is made in cash, securities, or other
35
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership, or proceeding for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee, the Debentureholders, and the
holders of other indenture securities, in accordance with the provisions of this
paragraph, the funds and property held in such special account and the proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, the Debentureholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
four-month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such four-month period, it shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(3) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such four month period; and
(4) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
(2) There shall be excluded from the operation of subsection (a) of this
Section 7.13 a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the
making thereof is given to the Debentureholders at the time and in the
manner provided in Section 6.04 with respect to reports pursuant to
subsections (a) and (b) thereof, respectively;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, payment agent, fiscal agent or depositary, or other similar
capacity;
36
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section 7.13;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of
this Section 7.13.
(3) As used in this Section 7.13:
(1) The term "default" shall mean any failure to make payment in full
or the principal of or interest upon any of the Debentures or upon the
other indenture securities when and as such principal or interest becomes
due and payable;
(2) The term "other indenture securities" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act of
1939) outstanding under any other indenture (A) under which the Trustee is
also trustee, (B) which contains provisions substantially similar to the
provisions of subsection (a) of this Section 7.13, and (C) under which a
default exists at the time of the apportionment of the funds and property
held in said special account;
(3) The term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) The term "self-liquidating paper" shall mean any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security; provided that the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation;
(5) The term "Company" shall mean any obligor upon the Debentures.
37
ARTICLE EIGHT
CONCERNING THE DEBENTUREHOLDERS
Section 1.44. Action by Debentureholders. Whenever in this Indenture it
--------------------------
is provided that the holders of a specified percentage in aggregate principal
amount of the Debentures may take any action (including the making of any demand
or request, the giving of any 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
Debentureholders in person or by agent or proxy appointed in writing, or (b) by
the record of the holders of Debentures voting in favor thereof at any meeting
of Debentureholders duly called and held in accordance with the provisions of
this Article Eight, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of Debentureholders.
Section 1.45. Proof of Execution by Debentureholders. Subject to the
--------------------------------------
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Debentureholder 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 Debentures shall be proved by the register of such
Debentures or by a certificate of the Debenture registrar.
The record of any Debentureholders' meeting shall be proved in the manner
provided in Section 9.06.
Section 1.46. Who Are Deemed Absolute Owners. The Company, the Trustee,
------------------------------
any paying agent and any Debenture registrar may deem the person in whose name
such Debenture shall be registered upon the books of the Company to be, and may
treat him as, the absolute owner of such Debenture (whether or not such
Debenture shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and premium, if any, and interest on such Debenture and for all
other purposes; and neither the Company nor the Trustee nor any paying agent nor
any Debenture registrar shall be affected by any notice to the contrary. All
such payments so made to any 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 monies payable upon any such Debenture.
Section 1.47. Company-Owned Debentures Disregarded. In determining
------------------------------------
whether the holders of the requisite aggregate principal amount of Debentures
have concurred in any direction, consent, waiver or other action under this
Indenture, Debentures which are owned by or pledged to the Company or any other
obligor on the Debentures or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Debentures shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the
--------
purposes of determining whether the Trustee shall be protected in relying on any
such direction, consent, waiver or other action only Debentures which the
Trustee knows are so owned shall be so disregarded. Debentures 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 Debentures and that the pledgee is not
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
38
case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
Section 1.48. Revocation of Consents; Future Holders Bound. 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 Debentures specified in this Indenture in connection
with such action, any holder of a Debenture the serial number of which is shown
by the evidence to be included in the Debentures the holders of which have
consented to such action may, by filing written notice with the Trustee at its
principal office and upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Debenture. Except as aforesaid any such
action taken by the holder of any Debenture shall be conclusive and binding upon
such holder and upon all future holders and owners of such Debenture,
irrespective of whether or not any notation in regard thereto is made upon such
Debenture or any Debenture issued in exchange or substitution therefor.
ARTICLE NINE
DEBENTUREHOLDERS' MEETINGS
Section 1.49. Purposes of Meetings. A meeting of Debentureholders may be
--------------------
called at any time and from time to time pursuant to the 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 Debentureholders pursuant to any of the
provisions of Article Six;
(2) to remove the Trustee and nominate a successor trustee
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 of the
Debentures under any other provision of this Indenture or under applicable
law.
Section 1.50. Call of Meetings by Trustee. The Trustee may at any time call
---------------------------
a meeting of Debentureholders to take any action specified in Section 10.01, to
be held at such time and at such place in the City of Chicago or in the Borough
of Manhattan, The City of New York, as the Trustee shall determine. Notice of
every meeting of the Debentureholders, 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 holders of Debentures at their addresses as they
shall appear on the registry books of the
39
Company. Such notice shall be mailed not less than twenty nor more than ninety
days prior to the date fixed for the meeting.
Any meeting of Debentureholders shall be valid without notice if the
holders of all Debentures then outstanding are present in person or by proxy or
if notice is waived before or after the meeting by the holders of all Debentures
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
Section 1.51. Call of Meetings by Company or Debentureholders. In case at
-----------------------------------------------
any time the Company, pursuant to a resolution of its Board of Directors, or
the holders of at least ten percent in aggregate principal amount of the
Debentures then outstanding, shall have requested the Trustee to call a meeting
of Debentureholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within twenty days after receipt of such
request, then the Company or such Debentureholders may determine the time and
the place in said City of Chicago or Borough of Manhattan for such meeting and
may call such meeting to take any action authorized in Section 9.01, by mailing
notice thereof as provided in Section 9.02.
Section 1.52. Qualifications for Voting. To be entitled to vote at any
-------------------------
meeting of Debenture holders a person shall (a) be a holder of one or more
Debentures or (b) be a person appointed by an instrument in writing as proxy by
a holder of one or more Debentures. The only persons who shall be entitled to be
present or to speak at any meeting of Debentureholders 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 1.53. Regulations. Notwithstanding any other provisions of this
-----------
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Debentureholders, in regard to proof of the holding
of Debentures 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 think fit.
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 Debentureholders as provided in Section 9.03, in which case the
Company or the Debentureholders 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 shall be elected by vote of the holders of a
majority in principal amount of the Debentures represented at the meeting and
entitled to vote at the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Debentureholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Debentures held or represented by him; provided however, that no vote
-------- -------
shall be cast or counted at any meeting in respect of any Debenture 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 Debentures held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other Debentureholders. Any
meeting of Debentureholders duly called pursuant to the provisions of
40
Section 9.02 or 9.03 may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
Section 1.54. Voting. The vote upon any resolution submitted to any
------
meeting of Debenture holders shall be by written ballots on which shall be
subscribed the signatures of the holders of Debentures or of their
representatives by proxy and the principal amount of the Debentures held or
represented by them. The permanent 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 Debentureholders 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 mailed as provided in Section 9.02. The record shall show the
principal amount of the Debentures voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent
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.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 1.55. 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 Debentureholders 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 reserved to the Trustee or to the
Debentureholders under any of the provisions of this Indenture or of the
Debentures.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 1.56. Supplemental Indentures without Consent of Debentureholders.
-----------------------------------------------------------
The Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(1) 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 hereof;
(2) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the protection of the holders of Debentures, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions 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; provided, however, that in
-------- -------
respect of any such additional covenant, restriction or condition
41
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;
(3) to provide for the issuance under this Indenture of Debentures in
coupon form (including Debentures registrable as to principal only) and to
provide for exchangeability of such Debentures with the Debentures issued
hereunder in fully registered form and to make all appropriate changes for such
purpose; or
(4) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture which shall not adversely affect the interests of
the holders of the Debentures.
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 and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
10.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Debentures at the time outstanding, notwithstanding any of
the provisions of Section 10.02.
Section 1.57. Supplemental Indentures with Consent of Debentureholders.
--------------------------------------------------------
With the consent (evidenced as provided in Section 8.01) of the holders of not
less than 662/3% in aggregate principal amount of the Debentures at the time
outstanding, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debentures; provided, however, that no such
-------- -------
supplemental indenture shall (i) extend the fixed maturity of any Debentures, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof or premium, if any, thereon, or make the principal
thereof or interest or premium, if any, thereon payable in any coin or currency
other than that provided in the Debentures without the consent of the holder of
each Debenture so affected, or (ii) reduce the aforesaid percentage of
Debentures, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all Debentures
then outstanding.
Upon the request of the Company, accompanied by a copy of the resolutions
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Debentureholders as
aforesaid, the Trustee shall join with the Company in the execution of such
42
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Debentureholders under
this Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 1.58. Compliance with Trust Indenture Act; Effect of Supplemental
-----------------------------------------------------------
Indentures. Any supplemental indenture executed pursuant to the provisions of
----------
this Article Ten shall comply with the Trust Indenture Act of 1939, as then in
effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Ten, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture of
the Trustee, the Company and the holders of Debentures shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 1.59. Notation on Debentures. Debentures authenticated and
----------------------
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Ten may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Debentures so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Debentures then outstanding, upon surrender of
such Debentures then outstanding.
Section 1.60. Evidence of Compliance of Supplemental Indenture to be
------------------------------------------------------
Furnished Trustee. The Trustee, subject to the provisions of Sections 7.01 and
-----------------
7.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Ten.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 1.61. Company May Consolidate, etc., on Certain Terms. Subject
-----------------------------------------------
to the provisions of Section 11.02, nothing contained in this Indenture or in
any of the Debentures shall prevent any consolidation or merger of the Company
with or into any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance or lease (or successive sales, conveyances or leases) of all or
substantially all of the property of the Company, to any other corporation
(whether or not affiliated with the Company) authorized to acquire and operate
the same; provided, however, and the Company hereby covenants and agrees,
-------- -------
43
that upon any such consolidation, merger, sale, conveyance or lease, other than
any such sale, conveyance or lease by the Company to a Subsidiary, the due and
punctual payment of the principal of and premium, if any, and interest on all of
the Debentures, 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, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the corporation (if other than the Company) formed by such consolidation, or
into which the Company shall have been merged, or by the corporation which shall
have acquired or leased such property.
Section 1.62. Successor Corporation to be Substituted. In case of any
---------------------------------------
such consolidation, merger, sale, conveyance or lease and upon the assumption by
the successor corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Debentures 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 shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of Zenith Electronics Corporation any or all of the
Debentures 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 instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Debentures which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Debentures so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debentures theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Debentures had been issued at
the date of the execution hereof. In the event of any such sale, conveyance or
lease (other than any such sale, conveyance or lease by the Company to a
Subsidiary), the person named as the "Company" in the first paragraph of this
Indenture or any successor which shall thereafter have become such in the manner
prescribed in this Article Eleven may be dissolved, wound up and liquidated at
any time thereafter and such person shall be released from its liabilities as
obligor and maker of the Debentures and from its obligations under this
Indenture.
In case of any such consolidation, merger, sale, conveyance or lease such
changes in phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
Section 1.63. Opinion of Counsel to be Given Trustee. The Trustee,
--------------------------------------
subject to Sections 7.01 and 7.02, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance or lease and any such assumption complies with the provisions
of this Article Eleven.
44
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1.64. Discharge of Indenture. When (a) the Company shall deliver to
----------------------
the Trustee for cancellation all Debentures theretofore authenticated (other
than any Debentures which shall have been destroyed, lost or stolen and in lieu
of or in substitution for which other Debentures shall have been authenticated
and delivered) and not theretofore cancelled, or (b) all the Debentures not
theretofore cancelled or 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, in trust, funds sufficient to pay at
maturity or upon redemption all of the Debentures (other than any Debentures
which shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Debentures shall have been authenticated and
delivered) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due to such date of maturity or 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, 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, the Company,
however, hereby agreeing to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Debentures.
Section 1.65. Deposited Monies to be Held in Trust by Trustee. Subject to
-----------------------------------------------
Section 12.04, all monies deposited with the Trustee pursuant to Section 12.01
shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Debentures for the payment or
redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest and premium, if
any.
Section 1.66. Paying Agent to Repay Monies Held. Upon the satisfaction
---------------------------------
and discharge of this Indenture all monies then held by any paying agent of the
Debentures (other than the Trustee) shall, upon demand of the Company, be repaid
to it or paid to the Trustee, and thereupon such paying agent shall be released
from all further liability with respect to such monies.
Section 1.67. Return of Unclaimed Monies. Any monies deposited with or
--------------------------
paid to the Trustee for payment of the principal of, premium, if any, or
interest on Debentures and not applied but remaining unclaimed by the holders of
Debentures for six years after the date upon which the principal of, premium, if
any, or interest on such Debentures, as the case may be, shall have become due
and payable, shall be repaid to the Company by the Trustee on demand and all
liability of the Trustee shall thereupon cease; and the holder of any of the
Debentures shall thereafter look only to the Company for any payment which such
holder may be entitled to collect.
45
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1.68. Indenture and Debentures Solely Corporate Obligations. No
-----------------------------------------------------
recourse for the payment of the principal of or premium, if any, or interest on
any Debenture, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in this Indenture or in any supplemental indenture, or in any Debenture,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, 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 all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the
Debentures.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 1.69. Provisions Binding on Company's Successors. All the
------------------------------------------
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
Section 1.70. Official Acts by Successor Corporation. 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 the time be the lawful sole successor
of the Company.
Section 1.71. Addresses for Notices, etc. Any notice or demand which by any
--------------------------
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the holders of Debentures on the Company may be given or
served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company
with the Trustee) to Zenith Electronics Corporation, Attention: Secretary, 0000
Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000. Any notice, direction, request or
demand by any Debentureholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the principal corporate trust office of the Trustee, Attention: Corporate
Trust Administration.
Section 1.72. Governing Law. This Indenture and each Debenture shall be
-------------
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of the State of New
York.
Section 1.73. Evidence of Compliance with Conditions Precedent. Upon any
------------------------------------------------
application or demand 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 relating to the proposed action have been
complied
46
with and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (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 opinion 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
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 1.74. Legal Holidays. In any case where the date of maturity of
--------------
interest on or principal of the Debentures or the date fixed for redemption of
any Debenture will be in the City of Chicago or The City of New York, New York,
a legal holiday or a day on which banking institutions are authorized by law or
executive order to close, then payment of such interest on or principal of the
Debentures need not be made on such date but may be made on the next succeeding
day not in such city a legal holiday or a day on which banking institutions are
authorized by law or executive order to close 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 from and after such date.
Section 1.75. Trust Indenture Act to Control. If and to the extent that
------------------------------
any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required to be included in this
Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act
of 1939, such required provision shall control.
Section 1.76. No Security Interest Created. Nothing in this Indenture or in
the Debentures, express or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect, in any jurisdiction where property of the
Company or its subsidiaries is located.
Section 1.77. Benefits of Indenture. Nothing in this Indenture or in the
---------------------
Debentures, express or implied, shall give to any person, other than the parties
hereto, any paying agent, any Debenture registrar and their successors hereunder
and the holders of Debentures any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.78. Table of Contents, Headings, etc. The table of contents and
--------------------------------
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 1.79. Execution 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.
47
Bank One Trust Company, NA hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
* * * *
48
IN WITNESS WHEREOF, ZENITH ELECTRONICS CORPORATION has caused this
Indenture to be signed and acknowledged by its Chairman or its President or one
of its Vice Presidents, and its corporate seal to be affixed hereunto, and the
same to be attested by its Secretary or an Assistant Secretary, and Bank One
Trust Company, NA has caused this Indenture to be signed and acknowledged by one
of its Vice Presidents, and has caused its corporate seal to be affixed hereunto
and the same to be attested by one of its Trust Officers, as of the day and year
first written above.
ZENITH ELECTRONICS CORPORATION
[SEAL]
By: _______________________________
Title: Chairman, President and
Chief Executive Officer
Attest:
By: ____________________________
Title: Assistant Secretary
BANK ONE TRUST COMPANY, NA
[SEAL]
By: _______________________________
Title: ________________________
Attest:
By: ____________________________
Title: _____________________
STATE OF ILLINOIS )
) SS.:
COUNTY OF X X X X )
On the ____ day of _____, 1999, before me personally came _______________,
to me known, who, being by me duly sworn did depose and say that he resides at
___________________ that he is ______________________________ of ZENITH
ELECTRONICS CORPORATION, one of the corporations described in and which executed
the above instrument; that he knows the corporate seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by the authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
__________________________
Notary Public
[NOTARIAL SEAL]
50
