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EXHIBIT 4.8
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SEITEL, INC.,
AS ISSUER,
and
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
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INDENTURE
Dated as of _______________, ______
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JUNIOR SUBORDINATED DEBENTURES
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS........................................................................2
SECTION 1.01 Definitions...................................................................2
SECTION 1.02 Rules of Construction.........................................................9
ARTICLE II THE DEBENTURES.....................................................................9
SECTION 2.01 Designation, Terms, Amount, Authentication and Delivery.......................9
SECTION 2.02 Form of Debenture and Trustee's Certificate..................................12
SECTION 2.03 Date and Denominations of Debentures and Provisions for
Payment of Principal, Premium and Interest...................................13
SECTION 2.04 Execution of Debentures......................................................14
SECTION 2.05 Exchange of Debentures.......................................................15
SECTION 2.06 Temporary Debentures.........................................................17
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Debentures..............................17
SECTION 2.08 Cancellation of Surrendered Debentures.......................................18
SECTION 2.09 Provisions of Indenture and Debentures for Sole Benefit of Parties
and Debentureholders.........................................................18
SECTION 2.10 Appointment of Authenticating Agent..........................................18
SECTION 2.11 Global Debentures............................................................19
SECTION 2.12 CUSIP Numbers................................................................21
ARTICLE III REDEMPTION OF DEBENTURES AND SINKING FUND PROVISIONS..............................22
SECTION 3.01 Redemption...................................................................22
SECTION 3.02 Notice of Redemption.........................................................22
SECTION 3.03 Payment Upon Redemption......................................................23
SECTION 3.04 Sinking Funds for Debentures.................................................24
SECTION 3.05 Satisfaction of Sinking Fund Payments With Debentures........................24
SECTION 3.06 Redemption of Debentures for Sinking Fund....................................25
ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY...............................................25
SECTION 4.01 Payment of Debentures........................................................25
SECTION 4.02 Maintenance of Office or Agency..............................................26
SECTION 4.03 Paying Agent and Holding Sums in Trust.......................................26
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.............................27
SECTION 4.05 Certain Expenses.............................................................27
SECTION 4.06 Additional Amounts...........................................................27
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ARTICLE V DEBENTUREHOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.................28
SECTION 5.01 Company to Furnish Trustee Information as to Names and
Addresses of Debentureholders................................................28
SECTION 5.02 Trustee to Preserve Information as to Names and Addresses of
Debentureholders.............................................................29
SECTION 5.03 Annual and Other Reports to Be Filed by Company With the Trustee.............30
SECTION 5.04 Trustee to Transmit Annual Report to Debentureholders........................31
ARTICLE VI REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS ON EVENT OF DEFAULT..................31
SECTION 6.01 Events of Default Defined....................................................31
SECTION 6.02 Covenant of Company to Pay to Trustee Whole Amount Due on
Debentures on Default in Payment.............................................34
SECTION 6.03 Application of Moneys Collected by Trustee...................................36
SECTION 6.04 Limitation on Suits by Holders of Debentures.................................36
SECTION 6.05 Remedies Cumulative; Delay or Omission in Exercise of Rights
Not Waiver of Default........................................................37
SECTION 6.06 Rights of Holders of Majority in Principal Amount of Debentures
to Direct Trustee and to Waive Defaults......................................38
SECTION 6.07 Trustee to Give Notice of Defaults Known To It, But May Withhold
in Certain Circumstances.....................................................38
SECTION 6.08 Requirements of an Undertaking to Pay Costs in Certain Suits
Under Indenture or Against Trustee...........................................39
ARTICLE VII CONCERNING THE TRUSTEE............................................................39
SECTION 7.01 Duties of Trustee............................................................39
SECTION 7.02 Certain Rights of the Trustee................................................41
SECTION 7.03 Trustee's Disclaimer.........................................................42
SECTION 7.04 May Own Debentures...........................................................43
SECTION 7.05 Moneys Received by Trustee to Be Held In Trust Without Interest..............43
SECTION 7.06 Compensation, Reimbursement and Indemnity....................................43
SECTION 7.07 Right of Trustee to Rely on Certificate of Officers of Company
Where No Other Evidence Specifically Prescribed..............................44
SECTION 7.08 Disqualification; Conflicting Interests......................................44
SECTION 7.09 Requirements for Eligibility of Trustee......................................44
SECTION 7.10 Resignation of Trustee and Appointment of Successor..........................45
SECTION 7.11 Acceptance by Successor to Trustee...........................................46
SECTION 7.12 Successor to Trustee by Merger, Consolidation or Succession to Business......47
SECTION 7.13 Preferential Collection of Claims Against the Company........................48
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ARTICLE VIII CONCERNING THE DEBENTURES.........................................................48
SECTION 8.01 Evidence of Action by Debentureholders.......................................48
SECTION 8.02 Proof of Execution of Instruments and of Holding of Debentures...............48
SECTION 8.03 Who May Be Deemed Owners of Debentures.......................................49
SECTION 8.04 Debentures Owned by the Company or Controlled or Controlling
Companies Disregarded for Certain Purposes...................................49
SECTION 8.05 Instruments Executed by Debentureholders Bind Future Holders.................50
ARTICLE IX SUPPLEMENTAL INDENTURES...........................................................50
SECTION 9.01 Without Consent of Debentureholders..........................................50
SECTION 9.02 With Consent of Debentureholders.............................................52
SECTION 9.03 Effect of Supplemental Indentures............................................53
SECTION 9.04 Debentures May Bear Notation of Changes by Supplemental Indentures...........53
SECTION 9.05 Opinion of Counsel...........................................................53
ARTICLE X CONSOLIDATION, MERGER, SALE OR CONVEYANCE.........................................54
SECTION 10.01 Company May Consolidate, etc. on Certain Terms...............................54
SECTION 10.02 Successor Corporation Substituted............................................54
ARTICLE XI SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.........................55
SECTION 11.01 Satisfaction and Discharge of Indenture......................................55
SECTION 11.02 Application by Trustee of Funds Deposited For Payment of Debentures..........57
SECTION 11.03 Repayment of Moneys Held by the Paying Agent.................................58
SECTION 11.04 Repayment of Moneys Held by the Trustee......................................58
SECTION 11.05 Indemnification Relating to Governmental Obligations.........................58
SECTION 11.06 Reinstatement................................................................58
ARTICLE XII IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS...................59
SECTION 12.01 Exemption From Individual Liability..........................................59
ARTICLE XIII MISCELLANEOUS PROVISIONS..........................................................59
SECTION 13.01 Successors and Assigns of Company Bound by Indenture.........................59
SECTION 13.02 Acts of Board, Committee or Officer of Successor Company Valid...............60
SECTION 13.03 Surrender of Powers of the Company...........................................60
SECTION 13.04 Notices......................................................................60
SECTION 13.05 Governing Law................................................................61
SECTION 13.06 Officers' Certificates and Opinions of Counsel...............................61
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SECTION 13.07 Payments Due on Legal Holidays...............................................61
SECTION 13.08 Control by Trust Indenture Act of 1939.......................................62
SECTION 13.09 Counterparts.................................................................62
SECTION 13.10 Separability.................................................................62
SECTION 13.11 Assignment...................................................................62
SECTION 13.12 Holders of Preferred Securities as Third Party Beneficiaries.................62
SECTION 13.13 Agent for Service of Process.................................................63
ARTICLE XIV SUBORDINATION OF DEBENTURES.......................................................63
SECTION 14.01 Debentures Subordinated to Senior Debt.......................................63
SECTION 14.02 Payment Over of Proceeds upon Dissolution, Etc...............................64
SECTION 14.03 Prior Payment to Senior Debt upon Acceleration of Debentures.................65
SECTION 14.04 Default in Senior Debt.......................................................66
SECTION 14.05 Limitations on Acceleration and Enforcement..................................66
SECTION 14.06 Payment Permitted if No Default..............................................67
SECTION 14.07 Subrogation Rights of Holders of Senior Debt.................................67
SECTION 14.08 Provision Solely to Define Relative Rights...................................67
SECTION 14.09 Trustee to Effectuate Subordination..........................................68
SECTION 14.10 No Waiver of Subordination Provision.........................................68
SECTION 14.11 Notice to Trustee............................................................69
SECTION 14.12 Reliance on Judicial Order or Certificate of Liquidating Agent...............69
SECTION 14.13 Trustee Not Fiduciary for Holders of Senior Debt.............................70
SECTION 14.14 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.............................................................70
SECTION 14.15 Article XIV Applicable to Paying Agents......................................70
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THIS INDENTURE is dated as of , between Seitel, Inc., a
Delaware corporation (the "Company"), and The First National Bank of Chicago, a
national banking association, as trustee (the "Trustee").
WHEREAS, for its lawful corporate purposes, the Company has
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured junior subordinated debentures (hereinafter referred to as
the "Debentures"), in an unlimited aggregate principal amount to be issued from
time to time in one or more series in accordance with the terms of this
Indenture, as registered Debentures without coupons, to be authenticated by the
certificate of the Trustee;
WHEREAS, 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 Debenture;
WHEREAS, the Debentures and the certificate of authentication
to be borne by the Debentures (the "Certificate of Authentication") are to be
substantially in such forms as may be approved by the Board of Directors (as
defined below) or set forth in any indenture supplemental to this Indenture; and
WHEREAS, all acts and things necessary to make the Debentures
issued pursuant hereto, when executed by the Company and authenticated and
delivered by the Trustee in accordance with the terms of this Indenture, the
valid, binding and legal obligations of the Company, and to constitute a valid
indenture and agreement according to its terms, have been done and performed or
will be done and performed prior to the issuance of such Debentures, and the
execution of this Indenture has been and the issuance hereunder of the
Debentures has been or will be prior to issuance in all respects duly
authorized, and the Company, in the exercise of the legal right and power in it
vested, executes this Indenture and proposes to make, execute, issue and deliver
the Debentures;
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 and of the acquisition and acceptance of the
Debentures by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit (subject to the provisions of
this Indenture) of the respective holders from time to time of the Debentures,
without any discrimination, preference or priority of any one Debenture over any
other by reason of priority in the time of issue, sale or negotiation thereof,
or otherwise, except as provided herein, as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions.
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture, any resolution of the Board of Directors of the
Company and of any indenture supplemental hereof shall have the respective
meanings specified in this Section. All other terms used in this Indenture which
are defined in the Trust Indenture Act of 1939, as amended, or which are by
reference in such Act 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 this
instrument.
"Additional Amounts" means any additional amounts required by
the express terms of a Debenture or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
to certain holders with respect to certain taxes, assessments or other
governmental charges imposed on such holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person; provided, however, that, except as
otherwise provided with respect to Debentures of a series as contemplated by
Section 2.01, no Trust to which Debentures have been issued shall be deemed to
be an Affiliate of the Company. For purposes of this definition, "control" of a
Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Authenticating Agent" means an authenticating agent with
respect to all or any of the series of Debentures, as the case may be, appointed
with respect to all or any series of the Debentures, as the case may be, by the
Trustee pursuant to Section 2.10.
"Bankruptcy Custodian" has the meaning assigned in Section
6.01(a).
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal, state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized, with respect to any particular
matter, to act by or on behalf of the Board of Directors of the Company.
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"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day that is not a Legal Holiday.
"Capital Stock" of any Person means and includes any and all
shares, interests, rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests
(however designated) in the equity (which includes, but is not limited to,
common stock, preferred stock and partnership and joint venture interests) of
such Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Capitalized Lease Obligation" of any Person means any
obligation of such Person to pay rent or other amounts under a lease of
property, real or personal, that is required to be capitalized for financial
reporting purposes in accordance with GAAP; and the amount of such obligation
shall be the capitalized amount thereof determined in accordance with GAAP.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company. The Certificate need not comply with the provisions of
Section 13.06.
"Common Equity" of any Person means and includes all Capital
Stock of such Person that is generally entitled to (i) vote in the election of
directors of such Person or (ii) if such Person is not a corporation, vote or
otherwise participate in the selection of the governing body, partners, managers
or others that will control the management and policies of such Person.
"Common Securities" means the common undivided beneficial
interests in the assets of the applicable Trust.
"Commission" means the Securities and Exchange Commission.
"Company" means Seitel, Inc., a Delaware corporation, and,
subject to the provisions of Article X, shall also include its successors and
assigns.
"Corporate Trust Office" of the Trustee shall be the address
specified in Section 13.04 and may be located at such other address as the
Trustee may give notice to the Company.
["Credit Agreement" means the Revolving Credit Agreement dated
as of July 27, 1996 among The First National Bank of Chicago, as agent, the
lenders party thereto, and the Company, as amended and as the same may be
further amended or restated, in whole or in part, from time to time.]
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"Debenture" or "Debentures" means any Debenture or Debentures,
as the case may be, authenticated and delivered under this Indenture.
"Debenture Register" has the meaning assigned in Section
2.05(b).
"Debenture Registrar" has the meaning assigned in Section
2.05(b). "Debentureholder," "holder of Debentures," "registered holder," or any
other similar term, means the Person or Persons in whose name or names a
particular Debenture shall be registered in the Debenture Register.
"Debt" of any Person at any date means, without duplication,
(a) all indebtedness or obligations of such Person for borrowed money (whether
or not the recourse of the lender is to the whole of the assets of such Person
or only to a portion thereof), (b) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (c) all obligations of
such Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto), other than standby letters of
credit and bid or performance bonds issued by such Person in the ordinary course
of business, to the extent not drawn or, to the extent drawn, if such drawing is
reimbursed not later than 30 Business Days following demand for reimbursement,
(d) all obligations of such Person to pay the deferred and unpaid purchase price
of property or services, except trade payables and accrued expenses incurred in
the ordinary course of business, (c) all Capitalized Lease Obligations of such
Person, (f) all Debt of others secured by a lien on any asset of such Person,
whether or not such Debt is assumed by such Person, (g) all Debt of others
guaranteed by such Person to the extent of such guarantee and (h) to the extent
not otherwise included in this definition, all obligations of such Person for
claims in respect of derivative products, including interest rate, foreign
exchange rate and commodity prices, forward contracts, options, swaps, collars
and similar arrangements.
"Declaration of Trust" means the Amended and Restated
Declaration of Trust of a Trust, if any, specified in the applicable Board
Resolution or supplemental indenture establishing a particular series of
Debentures pursuant to Section 2.01 hereof, as amended or supplemented from time
to time.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default hereunder.
"Depositary" means, with respect to Debentures of any series
for which the Company shall determine that such Debentures will be issued as one
or more Global Debentures, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency under
the Exchange Act, or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or
2.11.
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"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt.
"Event of Default" with respect to Debentures of a particular
series, means any event specified in Section 6.01 (a), continued for the period
of time, if any, and the giving of the notice, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect from
time to time.
"Global Debenture" means, with respect to any series of
Debentures, a Debenture in the form prescribed by Section 2.11 issued in the
name of the Depositary with respect thereto or its nominee.
"Governmental Obligations" means securities that are (i)
direct obligations of the United States for the payment of which its full faith
and credit is pledged or (ii) obligations of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States, the payment
of which is unconditionally guaranteed as a full faith and credit obligation by
the United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any such Governmental Obligation or a specific payment of
principal of or interest on any such Governmental Obligation held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Governmental Obligation
or the specific payment of principal of or interest on the Governmental
Obligation evidenced by such depository receipt.
"Indenture" means this instrument as originally executed, or,
if amended or supplemented as herein provided, as so amended or supplemented.
"Interest Payment Date," when used with respect to any
installment of interest on a Debenture of a particular series, means the date
specified in such Debenture or in or pursuant to a Board Resolution or in an
indenture supplemental hereto with respect to such series as the fixed date on
which an installment of interest with respect to Debentures of that series is
due and payable.
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"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York, Houston, Texas or
a Place of Payment are authorized or obligated by law, regulation or executive
order to remain closed.
"Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, any Vice President, the chief financial officer, the
chief accounting officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two
Officers of a Person, one of whom must be the Person's chief executive officer,
chief financial officer or chief accounting officer.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel that (i) may be counsel for the Company, a Trust or the Trustee,
(ii) unless otherwise provided, may be an employee of the Company but shall not
be an employee of a Trust or the Trustee, and (iii) shall be reasonably
acceptable to the Trustee.
"Outstanding," when used with respect to Debentures of any
series, subject to the provisions of Section 8.01, means, as of any particular
time, all Debentures of that series theretofore authenticated and delivered by
the Trustee under this Indenture, except (a) Debentures theretofore canceled by
the Trustee or any paying agent, or delivered to the Trustee or any paying agent
for cancellation or which have previously been cancelled; (b) Debentures or
portions thereof for the payment or redemption of which moneys or Governmental
Obligations 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 for the holders of such Debentures by the Company
(if the Company shall act as its own paying agent), provided, that if such
Debentures or portions of such Debentures are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as provided in
Article III, or provision satisfactory to the Trustee shall have been made for
giving such notice; (c) Debentures paid pursuant to Section 2.07; and (d)
Debentures in lieu of or in substitution for which other Debentures shall have
been authenticated and delivered pursuant to the terms of Section 2.07;
provided, however, that in determining whether the holders of the requisite
principal amount of Outstanding Debentures are present at a meeting of holders
of Debentures for quorum purposes or have consented to or voted in favor of any
request, demand, authorization, direction, notice, consent, waiver, amendment or
modification hereunder, Debentures held for the account of the Company, any of
its Subsidiaries or any of its Affiliates shall be disregarded and deemed not to
be Outstanding, except that in determining whether the Trustee shall be
protected in making such a determination or relying upon any such quorum,
consent or vote, only Debentures which the Trustee actually knows to be so owned
shall be so disregarded.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity of
any kind.
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"Place of Payment" when used with respect to the Debentures of
any series, means the place or places where the principal of, any premium and
interest on and any Additional Amounts with respect to the Debentures of that
series are payable as contemplated by Section 2.01.
"Predecessor Debenture" of any particular Debenture means
every previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" means the preferred undivided
beneficial interests in the assets of the applicable Trust.
"Property Trustee" means the entity performing the function of
the Property Trustee under the applicable Declaration of Trust of a Trust.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs 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 such Person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Exchange," when used with respect to the Debentures
of any series which are held as trust assets of a Trust pursuant to the
Declaration of Trust of such Trust, means the distribution of the Debentures of
such series by such Trust in exchange for the Preferred Securities and Common
Securities of such Trust in dissolution of such Trust pursuant to the
Declaration of Trust of such Trust.
["Senior Notes" means, collectively, (i) (a) the Company's
7.17% Series A Senior Notes due December 30, 2001 in the original aggregate
principal amount of $25,000,000, (b) the Company's 7.17% Series B Senior Notes
due December 30, 2002 in the original aggregate principal amount of $27,500,000,
and (c) the Company's Series C Senior Notes due December 30, 2002 in the
original aggregate principal amount of $22,500,000, in each case, issued
pursuant to separate Note Purchase Agreements, dated as of December 28, 1995, as
such notes and agreements may be amended from time to time, and (ii) (a) the
Company's 7.03% Series D Senior Notes due February 15, 2004 in the original
aggregate principal amount of $20,000,000, (b) the Company's 7.28% Series E
Senior Notes due February 15, 2009 in the original aggregate principal amount of
$75,000,000, and (c) the Company's Series F Senior Notes due February 15, 2009
in the original aggregate principal amount of $43,000,000, in each case, issued
pursuant to separate Note Purchase
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Agreements, dated as of February 12, 1999, as such notes and agreements may be
amended from time to time.]
"Senior Debt" means the principal of (and premium or
make-whole amount, if any) and interest on (including interest, if any, accruing
after the filing of a petition initiating any proceeding pursuant to any
Bankruptcy Law or any other applicable federal or state law) and other amounts
due on or in connection with [the Senior Notes, the Credit Agreement and] any
Debt of the Company incurred, assumed or guaranteed by the Company, whether
outstanding on the date of the Indenture or thereafter incurred, assumed or
guaranteed and all renewals, extensions and refundings of any such Debt of the
Company; provided, however, that the following will not constitute Senior
Indebtedness: (i) any Debt of the Company as to which, in the instrument
creating the same or evidencing the same or pursuant to which the same is
outstanding, it is expressly provided that such Debt of the Company shall be
subordinated to or pari passu with the Debentures; (ii) Debt of the Company in
respect of the Debentures; (iii) any Debt of the Company constituting trade
accounts payable arising in the ordinary course of business; (iv) any Debt of
the Company initially issued to any other Trust which issues Preferred
Securities and Common Securities; and (v) any Debt of the Company to any
Subsidiary of the Company, other than a trust referred to in the preceding
clause (iv).
"Significant Subsidiary" means any "significant subsidiary" of
the Company, as such term is defined in Regulation S-X, Title 17, Code of
Federal Regulations Part 210, as in effect on the date hereof.
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries own more than
50% of the total combined voting power of all Common Equity, and any partnership
or joint venture if more than a 50% interest in the profits or capital thereof
is owned by such Person or one or more of its Subsidiaries or such Person and
one or more of its Subsidiaries (unless such partnership or joint venture can
and does ordinarily take major business actions without the prior approval of
such Person or one or more of its Subsidiaries); provided, however, no Trust to
which Debentures have been issued shall be deemed to be a Subsidiary of the
Company.
"Trust" means any statutory business trust created under the
laws of the State of Delaware by the Company, as sponsor, as specified in the
applicable Board Resolution or supplemental indenture establishing a particular
series of Debentures pursuant to Section 2.01 hereof.
"Trustee" means The First National Bank of Chicago, a national
banking association, and, subject to the provisions of Article VII, shall also
include its successors and assigns, and, if at any time there is more than one
person acting in such capacity hereunder, "Trustee" shall mean each such person.
The term "Trustee" is used with respect to a particular series of the Debentures
shall mean the trustee with respect to that series.
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"Trust Indenture Act,"subject to the provisions of Section
9.01 and 9.02, means the Trust Indenture Act of 1939, as amended and in effect
at the date of execution of this Indenture.
"United States" means the United States of America (including
the States and the District of Columbia) and its territories, its possessions
(including Puerto Rico, the United States Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands) and other areas subject to its
jurisdiction.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien or foreign fiduciary of an estate or trust, or a
foreign partnership.
SECTION 1.02 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) all references in this Indenture to Articles and
Sections are references to the corresponding Articles and Sections in
and of this Indenture.
ARTICLE II
THE DEBENTURES
SECTION 2.01 Designation, Terms, Amount, Authentication and Delivery.
The aggregate principal amount of Debentures that may be
authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the
aggregate principal amount of Debentures of that series from time to time
authorized by or pursuant to a Board Resolution or pursuant to one or more
indentures supplemental hereto, prior to the initial issuance of Debentures of a
particular series. Prior to the initial issuance of Debentures of any series,
there
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shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Debentures of the series (which shall
distinguish the Debentures of the series from all other Debentures);
(2) any limit upon the aggregate principal amount of the
Debentures of the series that may be authenticated and delivered under
this Indenture (except for Debentures authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of, other
Debentures of that series);
(3) the date or dates, if any, on which the principal of the
Debentures of the series is payable and the right to shorten, extend or
defer such date or dates;
(4) the rate or rates at which the Debentures of the series
shall bear interest or the manner of calculation of such rate or rates,
if any;
(5) the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest will be payable or
the manner of determination of such Interest Payment Dates and the
record date for the determination of holders of Debentures to whom
interest is payable on any such Interest Payment Dates;
(6) the right, if any, to extend or defer the interest payment
periods and the duration of such extension;
(7) whether interest payments on the Debentures of the series
shall be cumulative and compounding and, if so, the dates from which
such interest payments shall be so cumulative or compounded;
(8) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Debentures of the
series may be redeemed, in whole or in part, at the option of the
Company;
(9) the obligation, if any, of the Company to redeem or
purchase Debentures of the series pursuant to any sinking fund or
analogous provisions (including payments made in cash in anticipation
of future sinking fund obligations) or at the option of a holder
thereof, or upon the occurrence of a specified event, and the period or
periods within which, the price or prices (whether denominated in cash,
securities or otherwise) at which and the terms and conditions upon
which, Debentures of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(10) any exchangeability, conversion or prepayment provisions
of the Debentures, including conversion into shares of Capital Stock of
the Company;
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(11) whether and under what circumstances Additional Amounts
with respect to the Debentures of the series shall be payable and, if
so, any provisions for redemption of such Debentures at the option of
the Company in lieu of payment of such Additional Amounts;
(12) the form of the Debentures of the series, including the
form of the Certificate of Authentication for such series;
(13) if other than denominations of $25 or any integral
multiple thereof, the denominations in which the Debentures of the
series shall be issuable;
(14) whether the Debentures are issuable as one or more Global
Debentures and, in such case, the identity of the Depositary for such
series, the form of any legend or legends which shall be borne by any
such Global Debentures in addition to or in lieu of that set forth in
Section 2.11 and any circumstances in addition to or in lieu of those
set forth in Section 2.11 in which any such Global Debentures may be
exchanged in whole or in part for Debentures registered, and any
transfer of such Global Debentures in whole or in part may be
registered, in the name or names of Persons other than the Depositary
for such Global Debentures or a nominee thereof;
(15) if the Debentures of such series are to be deposited as
trust assets in a Trust, the name of the applicable Trust (which shall
distinguish such statutory business trust from all other Trusts) into
which the Debentures of such series are to be deposited as trust assets
and the date of its Declaration of Trust;
(16) the place or places where the principal of, any premium
and interest on and any Additional Amounts with respect to the
Debentures of such series shall be payable, the place or places where
the Debentures of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands
to or upon the Company in respect of the Debentures of such series may
be made;
(17) the additions, modifications or deletions, if any, in the
definitions, Events of Default or covenants of the Company set forth
herein with respect to the Debentures of such series;
(18) if other than the principal amount thereof, the portion
of the principal amount of Debentures of such series that shall be
payable upon declaration of acceleration of the maturity thereof;
(19) any additional means of satisfaction and discharge of
this Indenture and any additional conditions or limitations to
discharge with respect to Debentures of the series pursuant to Article
XI or any modifications of or deletions from such conditions or
limitations;
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(20) if the amount of payments of principal of, any premium
and interest on and any Additional Amounts with respect to the
Debentures of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(21) the appointment of any paying agent or agents for the
Debentures of such series;
(22) the relative degree, if any, to which the Debentures of
such series shall be senior to or be subordinated to other series of
Debentures in right of payment, whether such other series of Debentures
are Outstanding or not; and
(23) any and all other terms with respect to the Debentures of
such series (and any terms which may be required by or advisable under
applicable laws or regulations not inconsistent with the terms of this
Indenture).
All Debentures of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to any such Board Resolution or in any indenture supplemental
hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action, together with such Board Resolution, shall be set forth in an Officers'
Certificate or certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
The Debentures shall be subordinated in right of payment to
Senior Debt as provided in Article XIV.
SECTION 2.02 Form of Debenture and Trustee's Certificate.
The Debentures of any series and the Certificate of
Authentication to be borne by such Debentures shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in or pursuant to a Board Resolution and as set forth in an
Officers' Certificate, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements typewritten,
printed, lithographed or engraved thereon as the Company may deem appropriate
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 or automated
quotation system on which Debentures of that series may be listed or traded, or
to conform to usage.
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SECTION 2.03 Date and Denominations of Debentures and Provisions for
Payment of Principal, Premium and Interest.
The Debentures shall be issuable as registered Debentures and
in the denominations of $25 or any integral multiple thereof, subject to Section
2.01. The Debentures of a particular series shall bear interest payable on the
dates and at the rate specified with respect to that series. The principal of,
interest on and any Additional Amounts with respect to the Debentures of any
series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in Dollars at a Place of Payment. The Company may,
however, pay such amounts (1) by wire transfer with respect to Global Debentures
or (2) by check mailed to a Holder's registered address with respect to any
Debenture. Each Debenture shall be dated the date of its authentication.
Interest on the Debentures shall be computed on the basis of a 360-day year
composed of twelve 30-day months, subject to Section 2.01.
Unless otherwise provided with respect to Debentures of a
series as contemplated by Section 2.01, the interest installment on any
Debenture which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Debentures of that series shall be paid to the Person
in whose name said Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the regular record date for such interest
installment. In the event that any Debenture of a particular series or portion
thereof is called for redemption and the redemption date is subsequent to a
regular record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Debenture will be paid upon presentation
and surrender of such Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder, and such Defaulted Interest
shall be paid by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the Persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debenture and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as provided
in this clause. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more than
15 nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the
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Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first class postage prepaid, to each
Debentureholder at his or her address as it appears in the Debenture
Register, not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names such Debentures
(or their Predecessor Debentures) are registered on such special record
date and shall be no longer payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest on
any Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange or automated quotation system
on which such Debentures may be listed or traded, and upon such notice
as may be required by such exchange or quotation system, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in or pursuant to a Board
Resolution or in one or more indentures supplemental hereto establishing the
terms of any series of Debentures pursuant to Section 2.01 hereof, the term
"regular record date" as used in this Section with respect to a series of
Debentures with respect to any Interest Payment Date for such series shall mean
either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a month,
or the last day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each
Debenture of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debenture of such series shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Debenture.
SECTION 2.04 Execution of Debentures.
The Debentures shall, subject to the provisions of Section
2.06, be printed on steel engraved borders or fully or partially engraved, or
legibly typed, as determined by the Officers of the Company executing such
Debentures, and shall be signed on behalf of the Company by two Officers of the
Company. Each such signature may be in the form of a manual or facsimile
signature and may be imprinted or otherwise reproduced on the Debentures and for
that purpose the Company may use the manual or facsimile signature of any Person
who shall have been an Officer of the Company, notwithstanding the fact that at
the time the Debentures shall be authenticated and delivered or disposed of such
Person shall have ceased to be such an Officer.
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Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating Agent appointed by
the Trustee with respect to such Debentures, upon any Debenture executed by the
Company shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and made available for delivery hereunder and that the
holder is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Debenture shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Debenture to the Trustee for cancellation as provided in Section
2.08, for all purposes of this Indenture such Debenture shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debentures of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Debentures, signed by two Officers of the Company, and the Trustee in accordance
with such written order shall authenticate and make available for delivery such
Debentures. Each Debenture shall be dated the date of its authentication by the
Trustee.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate such
Debentures if the issue of such Debentures pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Debentures and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
SECTION 2.05 Exchange of Debentures.
(a) Debentures of any series may be exchanged upon
presentation thereof at a Place of Payment, for other Debentures of such series
of authorized denominations, and for a like aggregate principal amount, upon
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In respect of any Debentures
so surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and such office or agency shall make available for delivery in
exchange therefor the Debenture or Debentures of the same series which the
Debentureholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
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(b) The Company shall keep, or cause to be kept, at an office
or agency in each Place of Payment a register (the register maintained in any
such office or agency of the Company is herein sometimes collectively referred
to as the "Debenture Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall register the Debentures and the transfers
and exchanges of Debentures as provided in this Article and which at all
reasonable times shall be open for inspection by the Trustee. The registrar for
the purpose of registering Debentures and transfer and exchange of Debentures as
provided herein shall be appointed by the Company (the "Debenture Registrar").
The initial Debenture Registrar shall be the Trustee.
Upon surrender for transfer or exchange of any Debenture at
the office or agency of the Company in a Place of Payment, the Company shall
execute and the Trustee shall authenticate and deliver, in the name of the
transferee or transferees, one or more new Debentures of the same series as the
Debenture presented, of any authorized denominations and of like tenor and
aggregate principal amount.
All Debentures presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be duly endorsed or
accompanied (if so required by the Company or the Debenture Registrar) by a
written instrument or instruments of transfer, in form satisfactory to the
Company or the Debenture Registrar, duly executed by the registered holder or by
his duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Debentures, or issue of new Debentures in case of
partial redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, Section 3.03(b) and Section 9.04
not involving any transfer.
(d) Notwithstanding any other provisions of this Indenture to
the contrary, the Company shall not be required (i) to issue, exchange or
register the transfer of any Debentures during a period beginning 15 Business
Days before the day of the mailing of a notice of redemption of less than all
the Outstanding Debentures of the same series and ending at the close of
business on the day of such mailing or (ii) to register the transfer of or
exchange any Debentures of any series or portions thereof called for redemption,
except the unredeemed portion of any Debenture being redeemed in part.
(e) The provisions of this Section 2.05 are, with respect to
any Global Debenture, subject to Section 2.11 hereof.
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SECTION 2.06 Temporary Debentures.
Pending the preparation of definitive Debentures of any
series, the Company may execute, and the Trustee shall authenticate and make
available for delivery, temporary Debentures (printed, lithographed or
typewritten) of any authorized denomination, and substantially in the form of
the definitive Debentures in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Debentures, all as may be determined by the Company. Every temporary Debenture
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Debentures of such series. Without unnecessary
delay the Company will execute and will furnish definitive Debentures of such
series and thereupon any or all temporary Debentures of such series may be
surrendered in exchange therefor (without charge to the holders), at a Place of
Payment, and upon receipt of a written order of the Company signed by one
Officer of the Company, the Trustee shall authenticate and deliver in exchange
for such temporary Debentures an equal aggregate principal amount of definitive
Debentures of such series, unless the Company advises the Trustee to the effect
that definitive Debentures need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Debentures of such
series shall be entitled to the same benefits under this Indenture as definitive
Debentures of such series authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Debentures.
In case any temporary or definitive Debenture shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon its written request the Trustee
(subject as aforesaid) shall authenticate and make available for delivery, a new
Debenture of the same series 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 the applicant's Debenture and
of the ownership thereof. The Trustee may authenticate any such substituted
Debenture and make available for delivery 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 (including the fees and expenses of the Trustee)
connected therewith. 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 they may require to save them harmless, and, in
case of destruction, loss or theft, evidence to the satisfaction of the Company
and the Trustee of the destruction, loss or theft of such Debenture and of the
ownership thereof.
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Every Debenture issued pursuant to the provisions of this
Section in substitution for any Debenture which is mutilated, destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the mutilated. destroyed, lost or stolen Debenture shall be found
at any time, or be enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Debentures of the same series 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 lawful) any and all
other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.08 Cancellation of Surrendered Debentures.
All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company, any Debenture Registrar or any paying agent, be delivered to the
Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled
by it, and no Debentures shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture. On written
request of the Company, the Trustee shall deliver to the Company cancelled
Debentures held by the Trustee. If the Company shall otherwise 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 delivered to the Trustee for cancellation.
SECTION 2.09 Provisions of Indenture and Debentures for Sole Benefit
of Parties and Debentureholders.
Except as provided in Article XIV with respect to the holders
of Senior Debt and except as provided in Sections 6.01(e) and 13.12, nothing in
this Indenture or in the Debentures, express or implied, shall give or be
construed to give to any Person, other than the parties hereto and the holders
of the Debentures, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being (except as so
provided) for the sole benefit of the parties hereto and of the holders of the
Debentures.
SECTION 2.10 Appointment of Authenticating Agent.
So long as any of the Debentures of any series remain
Outstanding there may be an Authenticating Agent for any or all such series of
Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or partial
redemption thereof, and Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. All references in this
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Indenture to the authentication of Debentures by the Trustee shall be deemed to
include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and which is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or State authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11 Global Debentures.
(a) If the Company shall establish pursuant to Section 2.01
that the Debentures of a particular series are to be issued as one or more
Global Debentures, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, one or more Global
Debentures which shall represent such of the Outstanding Debentures of such
series as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Debentures from time to time endorsed thereon
and that the aggregate amount of Outstanding Debentures represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
or redemptions. Any endorsement of a Global Debenture to reflect the amount, or
any increase or decrease in the amount, of Outstanding Debentures represented
thereby shall be made by the Trustee (i) in such manner and upon instructions
given by such Person or Persons as shall be specified in such Debenture or in a
written order of the Company to be delivered to the Trustee pursuant to Section
2.04 or (ii) otherwise in accordance with written instructions or such other
written form of instructions as is customary for the Depositary for such
Debenture, from such Depositary or its nominee on behalf of any Person having a
beneficial interest in such Global Debenture. Subject to the provisions of
Section 2.04 and, if applicable, Section 2.06, the Trustee shall deliver and
redeliver any Debenture in permanent global form in the manner and upon
instructions given by the Person or Persons specified in such Debenture or in
the applicable written order of the Company. With respect to the Debentures of
any series that are represented by a Global Debenture, the Company authorizes
the execution and delivery by the Trustee of a letter of representations or
other similar agreement or instrument in the form customarily provided for by
the Depositary appointed with respect to such Global Debenture. Any Global
Debenture may be deposited with the Depositary or its nominee, or may remain in
the custody of the Trustee or the Debenture custodian therefor pursuant to a
FAST Balance Certificate Agreement or similar
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agreement between the Trustee and the Depositary. If a written order of the
Company has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Debenture in
global form shall be in writing but need not comply with Section 13.06 and need
not be accompanied by an Opinion of Counsel.
(b) Notwithstanding the provisions of Section 2.05, the Global
Debenture of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If either (i) at any time the Depositary for a series of
Debentures notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act or
other applicable statute or regulation and a successor Depositary for such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, or (ii) an
Event of Default has occurred with respect to a series of Debentures and is
continuing and the Debenture Registrar has received a request from the
Depositary to issue Debentures of such series in lieu of all or a portion of
that Global Debenture (in which case the Company shall deliver Debentures of
such series within 30 days of such request), this Section 2.11 shall no longer
be applicable to the Debentures of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and make available for
delivery Debentures of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debentures of such series in exchange for
such Global Debentures. In addition, the Company may at any time determine that
the Debentures of any series shall no longer be represented by one or more
Global Debentures and that the provisions of this Section 2.11 shall no longer
apply to the Debentures of such series. In such event the Company will execute
and subject to Section 2.05, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver Debentures of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debentures of such series in exchange for such
Global Debentures. Upon the exchange of the Global Debentures for such
Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debentures shall be cancelled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debentures pursuant to this Section 2.11(c) shall be registered in such names
and in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Debentures to the Depositary for
delivery to the Persons in whose name such Debentures are so registered.
(d) Debentures distributed to holders of Global Certificates
(as defined in the applicable Declaration of Trust) upon the dissolution of the
applicable Trust shall be distributed in the form of one or more Global
Debentures registered in the name of the Depositary or its nominee, and may be
deposited with the Depositary or its nominee, or may remain in the custody of
the
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Trustee or a security custodian therefor pursuant to a FAST Balance Certificate
Agreement or similar agreement between the Trustee and the Depositary, for
credit by the Depositary to the respective accounts of the beneficial owners of
the Debentures represented thereby (or such other accounts as they may direct).
Prior to the distribution of Debentures to holders of Global Certificates upon
the dissolution of the applicable Trust, the Company shall designate the
Depositary in writing to the Trustee. Debentures distributed to holders of
Certificates (as defined in the applicable Declaration of Trust), other than
Global Certificates, upon the dissolution of the applicable Trust shall not be
issued in the form of a Global Debenture or any other form intended to
facilitate book-entry trading in beneficial interests in such Debentures.
(e) The Depositary or its nominee, as the registered owner of
a Global Debenture, shall be the holder of such Global Debenture for all
purposes under this Indenture and the Debentures, and owners of beneficial
interests in a Global Debenture shall hold such interests pursuant to the
applicable procedures of the Depositary. Accordingly, any such owner's
beneficial interest in a Global Debenture shall be shown only on, and the
transfer of such interest shall be effected only through, records maintained by
the Depositary or its nominee or its participants. None of the Company, the
Trustee or the Debenture Registrar will have any responsibility or liability for
any aspect of the records relating to, or payments made on account of Debentures
of any series by the Depositary, or for maintaining, supervising or reviewing
any records of the Depositary relating to such Debentures. None of the Company,
the Trustee or the Debenture Registrar shall be liable for any delay by the
Depositary or its nominee or its participants in identifying the beneficial
owners, and each such Person may conclusively rely on, and shall be protected in
relying on, instructions from the Depositary or such nominee or participants for
all purposes (including with respect to the registration and delivery, and the
respective principal amounts, of the Debentures to be issued).
(f) The rights of owners of beneficial interests in a Global
Debenture shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such owners and the Depositary
and/or its participants.
SECTION 2.12 CUSIP Numbers.
The Company in issuing the Debentures may use "CUSIP" numbers,
and the Trustee shall use such CUSIP numbers in notices of redemption or
exchange as a convenience to Debentureholders and no representation shall be
made as to the correctness of such numbers either as printed on the Debentures
or as contained in any notice of redemption or exchange.
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ARTICLE III
REDEMPTION OF DEBENTURES AND SINKING
FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Debentures of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Debentures of any series in
accordance with the right reserved so to do, it shall give notice of such
redemption to the Trustee at least 45 days in advance of the date fixed for
redemption. The Trustee shall then notify holders of the Debentures of such
series who are to be redeemed by mailing, first class postage prepaid, a notice
of such redemption not less than 30 days and not more than 60 days before the
date fixed for redemption of that series to such holders at their last addresses
as they shall appear upon the Debenture Register. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the registered holder receives the notice. In any case,
failure duly to give such notice to the holder of any Debenture of any series
designated for redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the redemption of any other
Debentures of such series or any other series. In the case of any redemption of
Debentures prior to the expiration of any restriction on such redemption
provided in the terms of such Debentures or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall identify the Debentures
to be redeemed (including CUSIP number) and shall specify: (a) the date fixed
for redemption, (b) the redemption price at which Debentures of that series are
to be redeemed, (c) the place or places where Debentures are to be surrendered
for payment of the redemption price, (d) that payment of the redemption price
will be made upon presentation and surrender of such Debentures at such place or
places, (e) that interest accrued to the date fixed for redemption will be paid
as specified in said notice, (f) that from and after said date interest will
cease to accrue and (g) that the redemption is for a sinking fund, if such is
the case. If less than all the Debentures of a series are to be redeemed, the
notice to the holders of Debentures of that series to be redeemed in whole or in
part shall specify the particular Debentures to be so redeemed. In case any
Debenture is to be redeemed in part only, the notice which relates to such
Debenture shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, upon surrender
of such Debenture, a new Debenture or Debentures of such series in principal
amount equal to the unredeemed portion thereof will be issued.
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(b) In the event of a partial redemption of a series of
Debentures, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal amount of
Debentures of the series to be redeemed and the other information set forth in
the immediately preceding paragraph, and thereupon the Trustee shall select, pro
rata, by lot or in such other manner as it shall deem appropriate and fair in
its discretion and which may provide for the selection of a portion or portions
(equal to $25 or any integral multiple thereof) of the principal amount of such
Debentures of a denomination larger than $25, the Debentures to be redeemed and
shall thereafter promptly notify the Company in writing of the numbers of the
Debentures to be redeemed, in whole or in part. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the
redemption of Debentures shall relate, in the case of any Debenture redeemed or
to be redeemed only in part, to the portion of the principal amount of such
Debenture which has been or is to be redeemed. If the Company shall so direct,
Debentures registered in the name of the Company, any Affiliate or any
Subsidiary thereof shall not be included in the Debentures selected for
redemption.
(c) The Company may, if and whenever it shall so elect during
any period in which Debentures of a particular series are subject to redemption,
by delivery of instructions signed on its behalf by an Officer of the Company,
instruct the Trustee or any paying agent to call all or any part of such
Debentures for redemption and to give notice of redemption in the manner set
forth in this Section, such notice to be in the name of the Company or its own
name as the Trustee or such paying agent may deem advisable. In any case in
which notice of redemption is to be given by the Trustee or any such paying
agent, the Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such paying agent, as the case may be, such
Debenture Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such paying agent to
give any notice by mail that may be required under the provisions of this
Section.
SECTION 3.03 Payment Upon Redemption.
(a) On or prior to any date fixed for redemption, the Company
shall deposit with the Trustee or any paying agent (or, if the Company is acting
as its own paying agent, segregate and hold in trust as provided in Section
4.03) an amount of money in same day funds sufficient to pay the redemption
price of, and (except if the redemption date shall be an Interest Payment Date)
accrued interest on and any Additional Amounts with respect to, the Debentures
or portions thereof which are to be redeemed on that date, other than Debentures
or portions thereof called for redemption on that date which have been delivered
by the Company to the Trustee for cancellation.
(b) If the giving of notice of redemption shall have been
completed as above provided and funds deposited as required, the Debentures or
portions of Debentures of the series to be redeemed specified in such notice
shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to, but
excluding, the date fixed for redemption, and any Additional Amounts payable
with respect thereto, and interest on such Debentures or portions of Debentures
shall cease to accrue on and after the date
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fixed for redemption, unless the Company shall default in the payment of such
redemption price, accrued interest and Additional Amounts with respect to any
such Debenture or portion thereof. On presentation and surrender of such
Debentures on or after the date fixed for redemption at the place of payment
specified in the notice, said Debentures shall be paid and redeemed at the
applicable redemption price for such series, together with interest accrued
thereon to, but excluding, the date fixed for redemption and any Additional
Amounts payable with respect thereto (but if the date fixed for redemption is an
Interest Payment Date, the interest installment payable on such date shall be
payable to the registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(c) Upon presentation of any Debenture of such series which is
to be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
make available for delivery to the holder thereof, at the expense of the
Company, a new Debenture or Debentures of the same series, of authorized
denominations in principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.04 Sinking Funds for Debentures.
The provisions of Sections 3.04, 3.05 and 3.06 shall be
applicable to any sinking fund for the retirement of Debentures of a series,
except as otherwise specified as contemplated by Section 2.01 for Debentures of
such series.
The minimum amount of any sinking fund payment provided for by
the terms of Debentures of any series is herein referred to as a "mandatory
sinking fund payment,"and any payment in excess of such minimum amount provided
for by the terms of Debentures of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debentures for
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.05. Each sinking fund payment shall be
applied to the redemption of Debentures of any series as provided for by the
terms of Debentures of such series and by this Article III.
SECTION 3.05 Satisfaction of Sinking Fund Payments With Debentures.
Unless otherwise provided with respect to Debentures of a
series as contemplated by Section 2.01, the Company (i) may deliver Outstanding
Debentures of a series (other than any previously called for redemption) and
(ii) may apply as a credit Debentures of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Debentures
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Debentures, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Debentures of such series
required to be made pursuant to the terms of such Debentures as provided for by
the terms of such series; provided that such Debentures have not been previously
so credited. Such Debentures shall be received and credited for such purpose by
the Trustee at the
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redemption price specified in such Debentures for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06 Redemption of Debentures for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of Debentures (unless a shorter period shall be satisfactory to
the Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms for that series, the portion thereof, if any, which is to
be satisfied by delivering and crediting Debentures of that series pursuant to
Section 3.05 and the basis for such credit and will, together with such
Officers' Certificate, deliver to the Trustee any Debentures to be so delivered.
Not less than 30 days before each such sinking fund payment date, the Trustee
shall select the Debentures to be redeemed upon such sinking fund payment date
in the manner specified in Section 3.02 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 3.02. Such notice having been duly given, the
redemption of such Debentures shall be made upon the terms and in the manner
stated in Section 3.03.
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Debentures as follows:
SECTION 4.01 Payment of Debentures.
The Company will duly and punctually pay or cause to be paid
the principal of, any premium and interest on and any Additional Amounts with
respect to the Debentures of that series at the time and place and in the manner
provided herein and established with respect to such Debentures.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal of and
premium (if any) on Debentures of any series, at a rate equal to the then
applicable interest rate on the Debentures of that series to the extent lawful;
and it shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and any Additional
Amount (without regard to any applicable grace period) on Debentures of any
series at the same rate to the extent lawful.
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SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Debentures remain Outstanding,
the Company agrees to maintain an office or agency in each Place of Payment,
with respect to each such series and at such other location or locations as may
be designated as provided in this Section 4.02, where (i) Debentures of that
series may be presented for payment, (ii) Debentures of that series may be
presented as hereinabove authorized for registration of transfer and exchange,
and (iii) notices and demands to or upon the Company in respect of the
Debentures of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by an Officer of the Company and delivered to
the Trustee, designate some other office or agency for such purposes or any of
them. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.
SECTION 4.03 Paying Agent and Holding Sums in Trust.
(a) If the Company shall appoint one or more paying agents for
all or any series of the Debentures, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to the Debentures of that series
(whether such sums have been paid to it by the Company or by any other
obligor of such Debentures) in trust for the benefit of the Persons
entitled thereto;
(2) that it will give the Trustee written notice of any
failure by the Company (or by any other obligor of such Debentures) to
make any payment of the principal of, any premium or interest on or any
Additional Amounts with respect to the Debentures of that series when
the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as
set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Debentures, it will on or before each due date of
the principal of, any premium or interest on or any Additional Amounts with
respect to Debentures of that series, set aside, segregate and hold in
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trust for the benefit of the Persons entitled thereto a sum sufficient to pay
such principal, premium, interest or Additional Amounts so becoming due on
Debentures of that series until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify in writing the
Trustee of such action, or any failure (by it or any other obligor on such
Debentures) to take such action. Whenever the Company shall have one or more
paying agents for any series of Debentures, it will, prior to 10:00 a.m., New
York City time on each due date of the principal of, any premium or interest on
or any Additional Amounts with respect to any Debentures of that series, deposit
with the paying agent a sum sufficient to pay the principal, premium, interest
or Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium, interest or
Additional Amounts, and (unless such paying agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding,
(i) the agreement to hold sums in trust as provided in this Section is subject
to the provisions of Section 11.04, and (ii) the Company may at any time, for
the purpose of obtaining the satisfaction and discharge of this Indenture or for
any other purpose, pay, or direct any paying agent to pay, to the Trustee all
sums held in trust by the Company or such paying agent, such sums to be held by
the Trustee upon the same terms and conditions as those upon which such sums
were held by the Company or such paying agent; and, upon such payment by any
paying agent to the Trustee, such paying agent shall be released from all
further liability with respect to such money.
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.
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 4.05 Certain Expenses.
Prior to a Security Exchange with respect to Debentures of any
series, the Company shall pay, to the extent provided in the applicable
Declaration of Trust, all debts and obligations (other than with respect to the
Common Securities and Preferred Securities) and cost and expenses of the Trust
that holds any Debentures of such series.
SECTION 4.06 Additional Amounts.
If the Debentures of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the holder of any
Debenture of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Debenture
of any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section 4.06 to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section 4.06 and express
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mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Unless otherwise provided pursuant to Section 2.01 with
respect to Debentures of any series, if the Debentures of a series provide for
the payment of Additional Amounts, at least ten days prior to the first Interest
Payment Date with respect to that series of Debentures (or if the Debentures of
that series will not bear interest prior to the maturity thereof, the first day
on which a payment of principal and any premium is made), and at least ten days
prior to each date of payment of principal and any premium or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company shall furnish the Trustee and the Company's
principal paying agent or paying agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such paying agent or paying
agents whether such payment of principal of and any premium or interest on the
Debentures of that series shall be made to Holders of Debentures of that series
who are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Debentures of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Debentures and the Company will pay to such
paying agent the Additional Amounts required by this Section 4.06. The Company
covenants to indemnify the Trustee and any paying agent for and to hold them
harmless against any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 4.06.
ARTICLE V
DEBENTUREHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Information as to Names and
Addresses of Debentureholders.
The Company will furnish or cause to be furnished to the
Trustee (a) on each regular record date (as defined in Section 2.03) a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the holders of each series of Debentures as of such regular record date,
provided, that the Company shall not be obligated to furnish or cause to be
furnished such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company, and (b) at
such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
provided, however, no such list need be furnished for any series for which the
Trustee shall be the Debenture Registrar.
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SECTION 5.02 Trustee to Preserve Information as to Names and
Addresses of Debentureholders.
(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 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
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 of such series or holders of all
Debentures with respect to their rights under this Indenture or under such
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 to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 5.02; or
(2) inform such applicants as to the approximate number of
holders of Debentures of such series or of all Debentures, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 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.
(d) 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 holder of such series or of all Debentures, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 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
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 of such series or
of all Debentures, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for
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a hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such 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.
(e) 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 any 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 (c) 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 (c).
SECTION 5.03 Annual and Other Reports to Be Filed by Company With the
Trustee.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; 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 the Commission in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act 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. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates or on Certificates provided pursuant to subsection (d)
of this Section 5.03).
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time by
such rules and regulations, including such opinions and reports of independent
public accountants as are required by Section 314 of the Trust Indenture Act.
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(c) The Company covenants and agrees to transmit by mail,
first class postage prepaid, or reputable overnight delivery service which
provides for evidence of receipt, to the Debentureholders, as their names and
addresses appear upon the Debenture Register, within 30 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 as may be required by rules and regulations prescribed from time
to time by the Commission.
(d) The Company covenants and agrees to furnish to the
Trustee, on or before May 15 in each calendar year in which any of the
Debentures are Outstanding, or on or before such other day in each calendar year
as the Company and the Trustee may from time to time agree upon, a Certificate
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 5.04 Trustee to Transmit Annual Report to Debentureholders.
(a) The Trustee shall transmit to Debentureholders such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section 313 of the Trust Indenture
Act, the Trustee shall, within 60 days after each May 15 following the date of
this Indenture, commencing May 15, 2000, deliver to Debentureholders a brief
report, dated as of such May 15, which complies with the provisions of such
Section 313.
(b) The Trustee shall comply with Section 313 of the Trust
Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company, with
each stock exchange upon which any Debentures are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustee when any
Debentures become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
SECTION 6.01 Events of Default Defined.
(a) Whenever used herein with respect to Debentures of a
particular series, "Event of Default" means any one or more of the following
events which has occurred and is continuing:
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(1) default in the payment of any installment of interest upon
or any Additional Amounts with respect to any of the Debentures of that
series, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; provided, however,
that a valid extension of an interest payment period by the Company, in
accordance with the terms of Debentures of that series established
pursuant to Section 2.01 hereof, shall not constitute a default in the
payment of interest or Additional Amounts for this purpose;
(2) default (A) in the payment of the principal of (and
premium, if any, on) any of the Debentures of that series as and when
the same shall become due and payable, whether at maturity, upon
redemption, by declaration of acceleration or otherwise, or (B) in any
payment required by any sinking or analogous fund established with
respect to that series, and in the case of this clause (B) only,
continuance of such default for a period of 30 days;
(3) failure on the part of the Company duly to observe or
perform, in any material respect, any other of the covenants or
agreements on the part of the Company with respect to that series
contained in such Debentures or otherwise established with respect to
that series of Debentures pursuant to Section 2.01 hereof or contained
in this Indenture (other than a covenant or agreement which has been
expressly included in this Indenture solely for the benefit of one or
more series of Debentures other than such series) for a period of 90
days after the date on which written notice of such failure, requiring
the same to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the
Trustee by the holders of at least 25% in principal amount of the
Outstanding Debentures of the series affected by the default;
(4) the Company or any Significant Subsidiary of the Company
pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or for a substantial part of its
property, or
(D) makes a general assignment for the benefit of its
creditors;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that remains unstayed and in effect for
90 days and that:
(A) is for relief against the Company or any
Significant Subsidiary of the Company as debtor in an
involuntary case,
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(B) appoints a Bankruptcy Custodian of the Company or
any Significant Subsidiary of the Company or a Bankruptcy
Custodian for all or for a substantial part of the property of
the Company or any Significant Subsidiary of the Company, or
(C) orders the liquidation of the Company or any
Significant Subsidiary of the Company; or
(6) any other Event of Default provided with respect to
Debentures of that series.
The term "Bankruptcy Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
(b) In each and every such case specified in clause (1), (2),
(3) or (6) of Section 6.01(a), unless the principal of all the Debentures of
that series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Outstanding
Debentures of the series affected by the default, by notice in writing to the
Company (and to the Trustee if given by such Debentureholders), may declare the
principal of all the Debentures of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything contained in this Indenture or in the
Debentures of that series or established with respect to that series pursuant to
Section 2.01 to the contrary notwithstanding. If an Event of Default specified
in clause (5) or (6) of Section 6.01 (a) occurs, such amounts shall ipso facto
become and be immediately due and payable without any declaration, notice or
other act on the part of the Trustee or any holder. Payment of principal of, any
premium and interest on and any Additional Amounts with respect to such
Debentures shall remain subordinated to the extent provided in Article XIV
notwithstanding that such amount shall become immediately due and payable as
herein provided.
(c) Section 6.01(b), however, is subject to the condition that
if, at any time after the principal of the Debentures of that series shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon and any Additional
Amounts with respect to all the Debentures of that series and the principal of
(and premium, if any, on) any and all Debentures of that series which shall have
become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest and Additional Amounts, at
the rate per annum expressed in the Debentures of that series to the date of
such payment or deposit) and the amount payable to the Trustee under Section
7.06, and any and all defaults under the Indenture, other than the nonpayment of
principal on Debentures of that series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06 then and
in every such case the holders of a majority in aggregate principal amount of
the Outstanding Debentures of the series affected by the default (subject to, in
the case of any series of Debentures held as trust assets of a Trust and with
respect to which a Security Exchange has not theretofore occurred, such consent
of
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the holders of the Preferred Securities and the Common Securities of such Trust
as may be required under the Declaration of Trust of such Trust), by written
notice to the Company and to the Trustee, may rescind and annul such declaration
and its consequences with respect to that series of Debentures; but no such
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Debentures of that series 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 former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
(e) If, prior to a Security Exchange with respect to the
Debentures of any series, a Default with respect to the Debentures of such
series shall have occurred, the Company expressly acknowledges that under the
circumstances set forth in the applicable Declaration of Trust, any holder of
Preferred Securities of the applicable Trust may enforce directly against the
Company the applicable Property Trustee's rights hereunder. In furtherance of
the foregoing and for the avoidance of any doubt, the Company acknowledges that,
under the circumstances described in the applicable Declaration of Trust, any
such holder of Preferred Securities, in its own name, in the name of the
applicable Trust or in the name of the holders of the Preferred Securities
issued by such Trust, may institute or cause to be instituted a proceeding,
including, without limitation, any suit in equity, an action at law or other
judicial or administrative proceeding, to enforce the applicable Property
Trustee's rights hereunder directly against the Company as issuer of the
applicable series of Debentures, and may prosecute such proceeding to judgment
or final decree, and enforce the same against the Company.
SECTION 6.02 Covenant of Company to Pay to Trustee Whole Amount Due
on Debentures on Default in Payment.
(a) The Company covenants that (1) in case default shall be
made in the payment of any installment of interest on or any Additional Amounts
with respect to any of the Debentures of a series, or any payment required by
any sinking or analogous fund established with respect to that series as and
when the same shall have become due and payable, and such default shall have
continued for a period of 30 days, or (2) in case default shall be made in the
payment of the principal of (or premium, if any, on) any of the Debentures of a
series when the same shall have become due and payable, whether upon maturity of
the Debentures of a series or upon redemption or upon 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 of that series, the whole amount that
then shall have become due and payable on all such Debentures for principal, any
premium, interest or Additional Amounts, 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 and without duplication
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of any other amounts paid by the Company or the applicable Trust in respect
thereof) upon overdue installments of interest and Additional Amounts at the
rate per annum expressed in the Debentures of that series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, and the amount payable to the Trustee under Section
7.06.
(b) In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trust, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
other obligor upon the Debentures of that series and collect in the manner
provided by law out of the property of the Company or other obligor upon the
Debentures of that series wherever situated the moneys adjudged or decreed to be
payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or other
judicial proceedings affecting the Company, any other obligor on such
Debentures, or the creditors or property of either, the Trustee shall have the
power to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Debentures of such series allowed for the entire amount due and
payable by the Company or such other obligor under this Indenture at the date of
institution of such proceedings and for any additional amount which may become
due and payable by the Company or such other obligor after such date, and to
collect and receive any moneys or other property payable or deliverable on any
such claim, and to distribute the same after the deduction of the amount payable
to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Debentures of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Debentureholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures of
that series, may be enforced by the Trustee without the possession of any of
such Debentures, or the production thereof at 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, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of the
Debentures of such series.
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 at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any
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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.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Debentureholder any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures of that series or the rights of any holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Debentureholder in any such proceeding.
SECTION 6.03 Application of Moneys Collected by Trustee.
Any moneys collected by the Trustee pursuant to this Article
VI with respect to a particular series of Debentures shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal, premium, interest or
Additional Amounts upon surrender of the Debentures of a particular series if
fully paid:
FIRST: To the payment of costs and expenses of collection and
of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all Senior Debt of the Company if
and to the extent required by Article XIV;
THIRD: To the payment of the amounts then due and unpaid upon
Debentures of such series for principal, premium, interest and
Additional Amounts, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Debentures for principal, premium, interest and Additional Amounts,
respectively; and
FOURTH: To the Company.
SECTION 6.04 Limitation on Suits by Holders of Debentures.
No holder of any Debenture of any series shall have any right
by virtue 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 (a) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to Debentures of such series specifying such Event of Default, as
hereinbefore provided, (b) the holders of not less than 25% in aggregate
principal amount of the Debentures of such series then Outstanding shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as trustee hereunder, (c) such holder or holders
shall have offered to the Trustee indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, (d) the
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Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding
and (e) during such 60 day period, the holders of a majority in principal amount
of the Debentures of that series do not give the Trustee a direction
inconsistent with the request; it being understood and intended, and being
expressly covenanted by the holder of every Debenture of such series with every
other such holder and the Trustee, that no one or more holders of Debentures of
such series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of the holders of any other of such Debentures, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Debentures of such series.
For the protection and enforcement of the provisions of this Section, each and
every Debentureholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Notwithstanding any other provisions of this Indenture,
however, the right of any holder of any Debenture to receive payment of the
principal of, any premium and interest on and any Additional Amounts with
respect to such Debenture, as therein provided, on or after the respective due
dates expressed in such Debenture (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder.
SECTION 6.05 Remedies Cumulative; Delay or Omission in Exercise of
Rights Not Waiver of Default.
(a) All powers and remedies given by this Article VI to the
Trustee or to the Debentureholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any others 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 performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Debentures.
(b) 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 Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article 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.
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SECTION 6.06 Rights of Holders of Majority in Principal Amount of
Debentures to Direct Trustee and to Waive Defaults.
The holders of a majority in aggregate principal amount of the
Debentures of any series at the time Outstanding (with, in the case of any
series of Debentures held as trust assets of a Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such Trust as my be required
under the Declaration of Trust of such Trust), shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the Trustee with
respect to such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture or unduly prejudicial to
the rights of holders of Debentures of any other series at the time Outstanding
not parties thereto. Subject to the provisions of Section 7.01, the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal liability.
The holders of a majority in aggregate principal amount of the Debentures of any
series at the time Outstanding affected thereby (with, in the case of any series
of Debentures held as trust assets of a Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such Trust as may be required
under the Declaration of Trust of such Trust), may on behalf of the holders of
all of the Debentures of such series waive any past default in the performance
of any of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the
payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any of the Debentures of that series as and when the
same shall become due by the terms of such Debentures otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay all
matured installments of principal, any premium, interest and any Additional
Amounts has been deposited with the Trustee in accordance with Section 6.01(c)),
or by the terms of Debentures of that series. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Debentures of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 6.07 Trustee to Give Notice of Defaults Known To It, But May
Withhold in Certain Circumstances.
The Trustee shall, within 90 days after knowledge of the
occurrence of a default with respect to a particular series, transmit by mail,
first class postage prepaid, to the holders of Debentures of that series, as
their names and addresses appear upon the Debenture Register, notice of all
defaults with respect to that series known to the Trustee, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purposes of this Section being hereby defined to be the events specified in
subsections (1), (2), (3), (4), (5) and (6) of Section 6.01(a), not including
any periods of grace provided for therein and irrespective of the giving of
notice provided for by subsection (3) of Section 6.01(a)); provided that, except
in the case of default
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in the payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any of the Debentures of that series or in the payment
of any sinking fund installment established with respect to that series, 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 determine that the
withholding of such notice is in the interests of the holders of Debentures of
that series; provided further, that in the case of any default of the character
specified in Section 6.01(a)(3) with respect to Debentures of such series no
such notice to the holders of the Debentures of that series shall be given until
at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any
default, except (i) a default under subsection (a)(1) or (a)(2) of Section 6.01
as long as the Trustee is acting as paying agent for such series of Debentures
or (ii) any default as to which a Responsible Officer of the Trustee shall have
received written notice.
SECTION 6.08 Requirements of an Undertaking to Pay Costs in Certain
Suits Under Indenture or Against Trustee.
All parties to this Indenture agree, and each holder of any
Debentures by his or her 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 making by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Debentureholder, or group of
Debentureholders, holding more than 10% in aggregate principal amount of the
Outstanding Debentures of any series, or to any suit instituted by any
Debentureholder for the enforcement of the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to any Debenture
of such series, on or after the respective due dates expressed in such Debenture
or established pursuant to this Indenture.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of
Default with respect to Debentures of a series and after the curing of all
Events of Default with respect to Debentures of that series which may have
occurred, shall undertake to perform with respect to Debentures of such series
such duties and only such duties as are specifically set forth in this
Indenture, and no implied
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covenants shall be read into this Indenture against the Trustee. In case an
Event of Default with respect to Debentures of a series has occurred (which has
not been cured or waived), the Trustee shall exercise with respect to Debentures
of that series 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 person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) 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:
(1) prior to the occurrence of an Event of Default with
respect to Debentures of a series and after the curing or waiving of
all such Events of Default with respect to that series which may have
occurred:
(A) the duties and obligations of the Trustee with
respect to Debentures of such series shall be determined
solely by the express provisions of this Indenture and the
Trust Indenture Act, and the Trustee shall not be liable with
respect to Debentures of such series 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
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to Debentures of such
series 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
provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(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, or such other
percentage as may be specified herein, in principal amount of the
Debentures of any series at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the Debentures of that
series;
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(4) 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 liability is
not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it;
(5) whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Article VII; and
(6) this subsection (b) shall not be construed to limit the
effect of Section 7.01(a).
SECTION 7.02 Certain Rights of the Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by an Officer of the Company
(unless other evidence in respect thereof is specifically prescribed herein);
(c) The Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of this
Indenture, unless such Debentureholders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby. Nothing herein contained
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to a series of the Debentures (which has not been
cured or waived) to exercise with respect to Debentures of that series such of
the rights and powers vested in it by this Indenture, and to use the same degree
of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs;
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(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
(f) 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,
security, or other papers or documents, unless requested in writing so to do by
the holders of not less than a majority in principal amount of the Outstanding
Debentures of the particular series affected thereby; 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
indemnity satisfactory to it against such costs, expenses or liabilities as a
condition to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 7.03 Trustee's Disclaimer.
(a) The recitals contained herein and in the Debentures (other
than the Certificate of Authentication on the Debentures) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Debentures or of the proceeds of such
Debentures, or for the use or application of any moneys paid over by the Trustee
in accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any paying
agent other than the Trustee.
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SECTION 7.04 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
and, subject to Sections 7.08 and 7.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, paying agent or Debenture
Registrar.
SECTION 7.05 Moneys Received by Trustee to Be Held In Trust Without
Interest.
Subject to the provisions of Section 11.04, all moneys
received by the Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree in writing to pay thereon.
SECTION 7.06 Compensation, Reimbursement and Indemnity.
(a) The Company covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, such compensation as
the Company and the Trustee shall from time to time agree in writing (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) for all services rendered by it in the execution of
the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, 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 reasonable 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 each of the Trustee and its officers, agents, directors and employees
for, and to hold them harmless against, any loss, liability or expense including
taxes (other than taxes based upon, measured by or determined by the income,
profit, franchise or doing business of the Trustee) 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 reasonable costs
and expenses of defending itself against any claim of liability in the premises.
The provisions of this Section 7.06 shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
(b) The obligations of the Company under this Section to
compensate and indemnify 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.
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(c) When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(a)(4) or (5) occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.07 Right of Trustee to Rely on Certificate of Officers of
Company Where No Other Evidence Specifically Prescribed.
Except as otherwise provided in Sections 7.01 and 7.02,
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 suffering or omitting to take 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 warranty to
the Trustee for any action taken, suffered or omitted to be taken by it under
the provisions of this Indenture.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
the Company shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act. Nothing herein shall prevent the Trustee from filing
with the Commission the application referred to in the second to last paragraph
of said Section 310(b).
SECTION 7.09 Requirements for Eligibility of Trustee.
There shall at all times be a Trustee with respect to the
Debentures issued hereunder which shall at all times be a corporation or banking
association organized and doing business under the laws of the United States, or
a corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50 million, and subject to supervision or
examination by Federal, State, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.
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SECTION 7.10 Resignation of Trustee and Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at
any time resign with respect to the Debentures of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation
by mail, first class postage prepaid, to the Debentureholders of such series, as
their names and addresses appear upon the Debenture Register. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to Debentures of such series by written instrument, in
duplicate, 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 60 days after the
mailing of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee with
respect to Debentures of such series, or any Debentureholder of that series who
has been a bona fide holder of a Debenture or Debentures for at least six months
may, subject to the provisions of Section 6.08, 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.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions 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
(3) the Trustee shall become incapable of acting, or shall be
adjudged 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 with respect to all
Debentures 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. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of removal, the Trustee so
removed may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Debentures of such series, or any
Debentureholder of that series who has been a bona fide holder of a Debenture or
Debentures for at least six months may, subject to the provisions of Section
6.08, on behalf of himself and all others similarly situated, petition any such
court 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.
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(c) The holders of a majority in aggregate principal amount of
the Debentures of any series at the time Outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee with respect to the Debentures of a series pursuant to
any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section
may be appointed with respect to the Debentures of one or more series or all of
such series, and at any time there shall be only one Trustee with respect to the
Debentures of any particular series.
SECTION 7.11 Acceptance by Successor to Trustee.
(a) In case of the appointment hereunder of a successor
trustee with respect to all Debentures, every such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of the resigning
Trustee; but, on the request of the Company or the successor trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
trustee with respect to the Debentures of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the
Debentures of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment
and which shall (1) contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debentures of that or those series to which the appointment of such successor
trustee relates, (2) contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debentures of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any act or failure to act on the part of any other Trustee hereunder; and
upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring
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Trustee shall become effective to the extent provided therein, such retiring
Trustee shall with respect to the Debentures of that or those series to which
the appointment of such successor trustee relates have no further responsibility
for the exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debentures of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Debentures of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights, power and trusts
referred to in paragraph (a) or (b) of this Section 7.11, as the case may be.
(d) No successor trustee shall accept its appointment unless
at the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section 7.11, the successor trustee shall transmit notice of
the succession of such trustee hereunder by mail, first class postage prepaid,
to the Debentureholders, as their names and addresses appear upon the Debenture
Register.
SECTION 7.12 Successor to Trustee by Merger, Consolidation or
Succession to Business.
Any corporation or banking association 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 corporate trust business of the Trustee, shall be the successor of
the Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. In case any Debentures shall have been authenticated,
but not made available for delivery by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and make available for delivery the Debentures so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Debentures.
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SECTION 7.13 Preferential Collection of Claims Against the Company.
The Trustee shall comply with Section 311 (a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
ARTICLE VIII
CONCERNING THE DEBENTURES
SECTION 8.01 Evidence of Action by Debentureholders.
Whenever in this Indenture it is provided that the holders of
a majority or specified percentage in aggregate principal amount of the
Debentures of a particular series 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 majority or specified percentage of that series have joined
therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Debentures of that series in Person or
by agent or proxy appointed in writing.
If the Company shall solicit from the Debentureholders of any
series any request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Debentureholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Debentureholders of record at the
close of business on the record date shall be deemed to be Debentureholders for
the purposes of determining whether Debentureholders of the requisite proportion
of Outstanding Debentures of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Debentures of that series
shall be computed as of the record date; provided that no such authorization,
agreement or consent by such Debentureholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 8.02 Proof of Execution of Instruments and of Holding of
Debentures.
Subject to the provisions of Sections 7.01 and 7.02, proof of
the execution of any instrument by a Debentureholder or his agent or proxy and
proof of the holding by any Person of any of the Debentures shall be sufficient
if made in the following manner:
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(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debentures shall be proved by the
Debenture Register of such Debentures or by a certificate of the Debenture
Registrar thereof.
(c) The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May Be Deemed Owners of Debentures.
Prior to the due presentment for registration of transfer of
any Debenture, the Company, the Trustee, any paying agent and any Debenture
Registrar may deem and treat the Person in whose name such Debenture shall be
registered in the Debenture Register as the absolute owner of such Debenture
(whether or not such Debenture shall be overdue and notwithstanding any notice
of ownership or writing thereon made by anyone other than the Debenture
Registrar) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and (subject to Section 2.03) 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.
SECTION 8.04 Debentures Owned by the Company or Controlled or
Controlling Companies Disregarded for Certain Purposes.
In determining whether the holders of the requisite aggregate
principal amount of Debentures of a particular series have concurred in any
direction, consent or waiver under this Indenture, Debentures of that series
which are owned by the Company or any other obligor on the Debentures of that
series or by any Subsidiary or Affiliate of the Company or of such other obligor
on the Debentures of that series shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Debentures of such series which a
Responsible Officer of the Trustee actually 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, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act with
respect to 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 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.
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SECTION 8.05 Instruments Executed by Debentureholders Bind Future
Holders.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the holders
of the majority or percentage in aggregate principal of the Debentures of a
particular series specified in this Indenture in connection with such action,
any holder of a Debenture of that series 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, 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, and of any Debenture issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Debenture. Any action taken
by the holders of the majority or percentage in aggregate principal amount of
the Debentures of a particular series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Debentures of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Without Consent of Debentureholders.
In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act as then in effect), without
the consent of the Debentureholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation or other
entity to the Company, and the assumption by any such successor of the
obligations of the Company contained herein or otherwise established
with respect to the Debentures;
(b) to add further covenants, restrictions, conditions or
provisions for the protection of the holders of the Debentures of all
or any series as the Board of Directors and the Trustee shall consider
to be for the protection of the holders of Debentures of all or any
series, and to make the occurrence, or the occurrence and continuance,
of a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default with respect
to such series 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,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or
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longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the
right of the holders of a majority in aggregate principal amount of the
Debentures of such series to waive such default;
(c) 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 as shall
not be inconsistent with the provisions of this Indenture and shall not
materially adversely affect the interests of the holders of the
Debentures of any series;
(d) 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 purposes;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Debentures of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee;
(f) to qualify or maintain qualification of this Indenture
under the Trust Indenture Act;
(g) to establish the form or terms of Debentures of any series
as permitted by Section 2.01; or
(h) to make any addition, change or elimination of any
provision of this Indenture that does not adversely affect the rights
of any Debentureholder in any material respect.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, 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 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 9.02.
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SECTION 9.02 With Consent of Debentureholders.
With the consent (evidenced as provided in Section 8.01) of
the holders of not less than a majority in aggregate principal amount of the
Debentures of all series affected by such supplemental indenture or indentures
at the time Outstanding (acting as one class) (and, in the case of any series of
Debentures held as trust assets of a Trust and with respect to which a Security
Exchange has not theretofore occurred, such consent of holders of the Preferred
Securities and the Common Securities of such Trust as may be required under the
Declaration of Trust of such Trust), the Company and the Trustee may from time
to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as then
in effect) for 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 of such series under this Indenture; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Debentures of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof; (ii) reduce the aforesaid percentage of Debentures, the
holders of which are required to consent to any such supplemental indenture;
(iii) impair the right of a holder of Debentures to receive payment of principal
of and interest on such Debentures on or after the due dates therefor or to
institute suit for the enforcement of payment thereof or with respect thereto;
(iv) make any change in this proviso of this Section 9.02; (v) change any
obligation of the Company to pay Additional Amounts with respect to any
Debentures; or (vi) impair the right of a holder of Debentures to convert or
exchange such Debentures for another security, if such Debentures shall be so
convertible or exchangeable, without in each case the consent of the holders of
each Debenture (and, in the case of any series of Debentures held as trust
assets of a Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of the holders of the Preferred Securities
and the Common Securities of such Trust as may be required under the Declaration
of Trust of such Trust) then Outstanding and affected thereby.
Upon the request of the Company, and upon the filing with the
Trustee of evidence of the consent of Debentureholders (and, in the case of any
series of Debentures held as trust assets of a Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such Trust as may be required
under the Declaration of Trust of such Trust) required to consent thereto as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion but shall not be obligated to enter into
such supplemental indenture.
It shall not be necessary for the consent of the
Debentureholders of any series affected thereby under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
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Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice, setting
forth in general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debentures of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04 Debentures May Bear Notation of Changes by Supplemental
Indentures.
Debentures of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed or traded, as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debentures of that series so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Debentures of
that series then Outstanding.
SECTION 9.05 Opinion of Counsel.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, shall
be entitled to rely on an Opinion of Counsel and an Officers' Certificate as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article IX and is authorized or permitted
under this Indenture.
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ARTICLE X
CONSOLIDATION, MERGER, SALE OR
CONVEYANCE
SECTION 10.01 Company May Consolidate, etc. on Certain Terms.
The Company shall not consolidate with or merge with any
Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to any Person, unless:
(a) either (1) the Company shall be the continuing corporation
or (2) the Person formed by or surviving such consolidation or merger (if other
than the Company), or to which such sale, lease, conveyance, transfer or other
disposition shall be made (collectively, the "Successor"), is organized and
existing under the laws of the United States or any State thereof or the
District of Columbia and expressly assumes by supplemental indenture all of the
obligations of the Company under this Indenture and the Debentures;
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(c) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the transaction and
such supplemental indenture comply with this Indenture.
SECTION 10.02 Successor Corporation Substituted.
Upon any consolidation or merger of the Company or any sale,
lease, conveyance, transfer or other disposition of all or substantially all of
the assets of the Company in accordance with Section 10.01, any Successor formed
by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of
the Company under this Indenture and each series of Debentures with the same
effect as if such Successor had been named as the Company herein and the
predecessor Company, in the case of a sale, conveyance, transfer or other
disposition (other than a lease), shall be released from all obligations under
this Indenture and each series of Debentures.
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ARTICLE XI
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
SECTION 11.01 Satisfaction and Discharge of Indenture.
(a) The following provisions shall apply to the Debentures of
each series unless specifically otherwise provided in a Board Resolution or
indenture supplemental hereto provided pursuant to Section 2.01. If at any time
(1) the Company shall have paid or caused to be paid the principal of, any
premium and interest on and any Additional Amounts with respect to all the
Debentures of any series Outstanding hereunder (other than Debentures of such
series which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.07) as and when the same shall have become due and
payable, or (2) the Company shall have delivered to the Trustee for cancellation
all Debentures of any series theretofore authenticated (other than any
Debentures of such series which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.07) or (3)(A)
all the Debentures of any series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms will
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 (B) the Company shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Company in
accordance with Section 11.04) or Government Obligations, maturing as to
principal and interest at such times and in such amounts as will ensure the
availability of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (i) the principal
of, any premium and interest on and any Additional Amounts with respect to all
Debentures of such series on each date that such amounts are due and payable and
(ii) any mandatory sinking fund payments with respect to the Debentures of such
series on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Debentures of such series; and if, in
any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company with respect to the Debentures of such series,
then this Indenture shall cease to be of further effect with respect to the
Debentures of such series (except as to (1) rights of registration of transfer
and exchange of Debentures of such series and the Company's right of optional
redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or
stolen Debentures, (3) rights of holders of Debentures to receive payments of
principal thereof, any premium and interest thereon and any Additional Amounts
with respect thereto, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Debentureholders to receive mandatory
sinking fund payments, if any, (4) the rights, obligations, duties and
immunities of the Trustee hereunder, (5) the rights of the holders of Debentures
of such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them, (6) the obligations of the
Company under Section 4.02 and (7) the rights of holders of the Debentures to
receive upon any conversion or exchange of Debentures any securities into which
such Debentures
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are convertible or exchangeable, if such Debentures are so convertible or
exchangeable) and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture; provided that the rights of the Debentureholders
to receive amounts in respect of principal of, any premium and interest on and
any Additional Amounts with respect to the Debentures held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange or automated quotation system upon which the Debentures
are listed or traded. The Company agrees to reimburse the Trustee for any costs
or expenses thereafter reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Debentures of such series.
(b) The following provisions shall apply to the Debentures of
each series unless specifically otherwise provided in a Board Resolution or
supplemental indenture pursuant to Section 2.01. In addition to discharge of the
Indenture pursuant to the next preceding paragraph, the Company shall be deemed
to have paid and discharged the entire indebtedness on all the Debentures of a
series on the date of the deposit referred to in subparagraph (1) below, and the
provisions of this Indenture with respect to the Debentures of such series shall
no longer be in effect (except as to (i) rights of registration of transfer and
exchange of Debentures of such series and the Company's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Debentures, (iii) rights of holders of Debentures to receive payments of
principal thereof, any premium and interest thereon and any Additional Amounts
with respect thereto, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the holders of Debentures to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Debentures as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them, (vi) the obligations of the
Company under Section 4.02 and (vii) the rights of holders of the Debentures to
receive upon any conversion or exchange of Debentures any securities into which
such Debentures are convertible or exchangeable, if such Debentures are so
convertible or exchangeable) and the Trustee, at the expense of the Company,
shall at the Company's request, execute proper instruments acknowledging the
same, if
(1) with reference to this provision the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Debentures
of such series (A) cash in an amount, or (B) Governmental Obligations
maturing as to principal and interest at such times and in such amounts
as will insure the availability of cash in an amount or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (i) the
principal of, any premium and interest on and any Additional Amounts
with respect to all Debentures of such series on each date that such
amounts are due and payable and (ii) any mandatory sinking fund
payments with respect to
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the Debentures of such series on the dates on which such payments are
due and payable in accordance with the terms of the Indenture and the
Debentures of such series;
(2) no Default or Event of Default with respect to the
Debentures of such series shall have occurred and be continuing on the
date of such deposit;
(3) the Company has delivered to the Trustee a ruling received
by the Company from the United States Internal Revenue Service which
states that, or an Opinion of Counsel which states that, the holders of
the Debentures of such series will not recognize income, gain or loss
for United States federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit, defeasance and
discharge had not occurred;
(4) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with;
(5) no event or condition shall exist that, pursuant to the
provisions of Section 14.02 or 14.03, would prevent the Company from
making payments of the principal of, any premium or interest on or any
Additional Amounts with respect to the Debentures of such series on the
date of such deposit; and
(6) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that after the passage of 91 days following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
SECTION 11.02 Application by Trustee of Funds Deposited For Payment of
Debentures.
Subject to Section 11.04, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 11.01 shall be held in trust and
applied by it to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular Debentures of such series for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be segregated from
other funds except to the extent required by law. Notwithstanding anything
contained herein to the contrary, all moneys in trust are not subject to Article
XIV.
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SECTION 11.03 Repayment of Moneys Held by the Paying Agent.
In connection with the satisfaction and discharge of this
Indenture with respect to Debentures of any series, all moneys then held by any
paying agent under the provisions of this Indenture with respect to such series
of Debentures 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 moneys.
SECTION 11.04 Repayment of Moneys Held by the Trustee.
Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of or interest or any Additional Amounts
on any Debenture of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest or any Additional
Amounts shall have become due and payable, shall, upon the written request of
the Company and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Company by the
Trustee for such series or such paying agent, and a holder of the Debentures of
such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Company for any payment which such holder may be entitled to collect, and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to moneys
deposited with it for any payment series, shall at the expense of the Company,
mail by first-class mail to holders of such Debentures at their addresses as
they shall appear on the Debenture Register, notice, that such moneys remain and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 11.05 Indemnification Relating to Governmental Obligations.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Governmental
Obligations deposited pursuant to Section 11.01 or the principal or interest
received in respect of such obligations.
SECTION 11.06 Reinstatement.
If the Trustee or any paying agent is unable to apply any
money or Government Obligations deposited with respect to Debentures of any
series in accordance with this Article XI by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture with respect to the Debentures
of such series and under the Debentures of such series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or such paying agent is permitted to apply all such
money or Government Obligations in accordance with this Article XI; provided,
however, that if the
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Company has made any payment of principal of, any premium or interest on or any
Additional Amounts with respect to any Debentures because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Debentures to receive such payment from the money or Government
Obligations held by the Trustee or such paying agent.
ARTICLE XII
IMMUNITY OF INCORPORATORS,
SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 Exemption From Individual Liability.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Debenture, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or 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 this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Debentures or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Debentures or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Debentures.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind its
successors and assigns, whether so expressed or not.
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SECTION 13.02 Acts of Board, Committee or Officer of Successor Company
Valid.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the corresponding board, committee or officer of any corporation that
shall at the time be the lawful sole successor of the Company.
SECTION 13.03 Surrender of Powers of the Company.
The Company by instrument in writing executed by authority of
two-thirds of its Board of Directors and delivered to the Trustee may surrender
any of the powers reserved to the Company and thereupon such power so
surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION 13.04 Notices.
Except as otherwise expressly provided herein, 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 to or on the
Company may be given or served by being deposited first class postage prepaid in
a post office letterbox addressed (until another address is filed in writing by
the Company with the Trustee), as follows:
Seitel, Inc.
00 Xxxxx Xxxxxx Xxxx
Xxxxxxx Floor, West Building
Houston, Texas 77027
Attention: Chief Financial Officer
Any notice, election, request or demand by the Company or 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, in English, upon
receipt by the Trustee at the Corporate Trust Office, as follows:
The First National Bank of Chicago
0 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Mail Suite IL1-0126
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
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SECTION 13.05 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 SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 13.06 Officers' Certificates and Opinions of Counsel.
(a) 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 provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of certain documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture (other than the certificate provided pursuant to
Section 5.03(d) of this Indenture) shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
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 13.07 Payments Due on Legal Holidays.
Except as provided with respect to Debentures of a series as
contemplated by Section 2.01, in any case where the date of maturity of
principal of, any premium or interest on or any Additional Amounts with respect
to any Debenture or the date of redemption of any Debenture shall not be a
Business Day, then payment of such principal, premium, interest or Additional
Amounts may be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on the date such payment was originally payable.
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SECTION 13.08 Control by Trust Indenture Act of 1939.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.09 Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 13.10 Separability.
In case any one or more of the provisions contained in this
Indenture or in the Debentures of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Debentures, but this Indenture and such Debentures shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.11 Assignment.
The Company will have the right at all times to assign any of
its rights or obligations under this Indenture to a Subsidiary or an Affiliate
of the Company; provided that, in the event of any such assignment, the Company
will remain jointly and severally liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties hereto (other than pursuant to Article
VII or X).
SECTION 13.12 Holders of Preferred Securities as Third Party
Beneficiaries.
The Company acknowledges that, prior to a Security Exchange
with respect to Debentures of any series held as trust assets of a Trust, if the
Property Trustee of such Trust fails to enforce its rights under this Indenture
as the holder of the Debentures of a series held as trust assets of such Trust,
any holder of the Preferred Securities of such Trust may in accordance with the
provisions of the Declaration of Trust of such Trust, institute legal
proceedings directly against the Company to enforce such Property Trustee's
rights under this Indenture without first instituting any legal proceedings
against such Property Trustee or any other Person; provided that, if an Event of
Default has occurred and is continuing and such event is attributed to the
failure of the Company to pay principal of, any premium or interest on or
Additional Amounts with respect to the Debentures on the date such amounts are
otherwise payable (or in the case of redemption, on the redemption date), then a
holder of Preferred Securities of such Trust may directly institute a proceeding
for enforcement of payment to such holder of such amounts on the Debentures
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such holder (a
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"Holder Direct Action") on or after the respective due date specified in the
Debentures. In connection with such Holder Direct Action, the Company shall be
subrogated to the rights of such holder of Preferred Securities to the extent of
any payment made by the Company to such holders of Preferred Securities in such
Holder Direct Action. Except as provided in the preceding sentences or Section
6.01(e), the holders of Preferred Securities of such Trust shall not be able to
exercise directly any other remedy available to the holders of the Debentures.
SECTION 13.13 Agent for Service of Process.
The Company hereby designates CT Corporation System, currently located
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, as its authorized agent upon whom process
may be served in any action, suit or proceeding that may be instituted in any
State or Federal court sitting in the County of New York of the State of New
York pertaining to this Indenture or any matter arising out of or related to
this Indenture, and the Company will accept the jurisdiction of such court in
such action, and waive, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue or forum non
conveniens. The Company may and shall (to the extent the process agent ceases to
be able to be served on the basis contemplated herein), by written notice to the
Trustee, designate such additional or alternative agents for service of process
under this Section 13.13 that (i) maintains an office located in the Borough of
Manhattan, The City of New York in the State of New York, (ii) are either (a)
counsel for the Company or (b) a corporate service company which acts as agent
for service of process for other persons in the ordinary course of its business
and (iii) agrees to act as agent for service of process in accordance with this
Section 13.13. Such notice shall identify the name of such agent for process and
the address of such agent for process in the Borough of Manhattan, The City of
New York, State of New York. Upon the request of any holder of a Debenture, the
Trustee shall deliver such information to such holder. Notwithstanding the
foregoing, there shall, at all times, be at least one agent for service of
process for the Company appointed and acting in accordance with this Section
13.13. A copy of any such process shall be sent or given to the Company at the
address for notices specified in Section 13.04 hereof. The Company shall
maintain the designation of such authorized agent until two years after
termination of the Company's obligation under this Indenture pursuant to Section
11.01.
ARTICLE XIV
SUBORDINATION OF DEBENTURES
SECTION 14.01 Debentures Subordinated to Senior Debt.
The Debentures shall be subordinated to Senior Debt as set
forth in this Article XIV. The Company covenants and agrees, and each holder of
a Debenture of any series by such holder's acceptance thereof likewise covenants
and agrees, that, to the extent and in the manner hereinafter set forth in this
Article XIV, the indebtedness represented by the Debentures of such series and
the payment of the principal of, interest and premium on and any Additional
Amounts with respect to
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each and all of the Debentures of such series are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt; provided, however, that no provision of this Article XIV shall
prevent the occurrence of any Default or Event of Default hereunder.
SECTION 14.02 Payment Over of Proceeds upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event
of:
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or
(b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in such event:
(1) the holders of Senior Debt shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of
all Senior Debt, or provision shall be made for such payment in cash,
before the holders of the Debentures of any series are entitled to
receive any payment on account of the principal of, interest and
premium on or any Additional Amounts as may be provided for in respect
of the Debentures of such series; and
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, by
set-off or otherwise, to which the holders or the Trustee would be
entitled but for the provisions of this Article XIV, including any such
payment or distribution which may be payable or deliverable by reason
of the payment of any other Debt of the Company being subordinated to
the payment of the Debentures of such series, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Debt or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any
of such Senior Debt may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the principal of, and
premium or make-whole amount, if any, and interest on the Senior Debt
held or represented by each, to the extent necessary to make payment in
full of all Senior Debt remaining unpaid, after giving affect to any
concurrent payment or distribution to the holders of such Senior Debt.
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In the event that, notwithstanding the foregoing provisions of
this Section 14.02, the Trustee or the holder of any Debenture of any series
shall receive any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of the
payment of any other Debt of the Company being subordinated to the payment of
the Debentures of such series, before all Senior Debt is paid in full or payment
thereof provided for, and if such fact shall then have been made known to the
Trustee as provided in Section 14.11, or, as the case may be, such holder, then
and in such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other person making payment or distribution of
assets of the Company for application to the payment of all Senior Debt
remaining unpaid, to the extent necessary to pay all Senior Debt in full, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt.
For purposes of this Article XIV only, the words "cash,
property or securities," or any combination thereof, shall be deemed not to
include shares of capital stock of the Company as reorganized or readjusted, or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinated, at least to
the extent provided in this Article XIV with respect to the Debentures, to the
payment of all Senior Debt which may at the time be outstanding and to any
securities issued to the holders of Senior Debt in respect of the Senior Debt
under any such plan of reorganization or readjustment.
SECTION 14.03 Prior Payment to Senior Debt upon Acceleration of
Debentures.
In the event that any Debentures of any series are declared
due and payable before their stated maturity, then and in such event the holders
of Senior Debt shall be entitled to receive payment in full of all amounts due
or to become due on or in respect of all Senior Debt or provision shall be made
for such payment in cash, before the holders of the Debentures of such series
are entitled to receive any payment (including any payment which may be payable
by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Debentures of such series) by the Company on
account of the principal of, interest or premium on or any Additional Amounts
with respect to Debentures of such series or on account of the purchase or other
acquisition of Debentures of such series.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the holder of any Debentures of any
series prohibited by the foregoing provisions of this Section 14.03, and if such
facts then shall have been known or thereafter shall have been made known to the
Trustee (as provided in Section 14.11) or to such holder, as the case may be,
pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
person holding such payment for the benefit of the holders of Senior Debt.
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The provisions of this Section 14.03 shall not apply to any
payment with respect to which Section 14.02 would be applicable.
SECTION 14.04 Default in Senior Debt.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, if any, interest or any other
payment due on any Senior Debt of the Company, as the case may be, beyond any
applicable grace period with respect thereto, or in the event that the maturity
of any Senior Debt of the Company has been accelerated because of any default,
then, in any such case, no payment shall be made by the Company with respect to
the principal (including redemption payments, if any) of, interest or premium on
or any Additional Amounts with respect to the Debentures until such default is
cured or waived or ceases to exist or any such acceleration or demand for
payment has been rescinded.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the holder of any Debentures of any
series prohibited by the foregoing provisions of this Section 14.04, and if such
facts then shall have been known or thereafter shall have been made known to the
Trustee (as provided in Section 14.11) or to such holder, as the case may be,
pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
person holding such payment for the benefit of the holders of Senior Debt.
The provisions of this Section 14.04 shall not apply to any
payment with respect to which Section 14.02 would be applicable.
SECTION 14.05 Limitations on Acceleration and Enforcement.
At any time when the Company may not make payments in respect
of the Debentures as a result of the application of Section 14.04, no holder of
Debentures will:
(a) accelerate or cause or permit the acceleration of the
maturity of any of the Debentures; or
(b) commence, cause the commencement of, participate in or
support any action or proceeding (whether at law or in equity) against the
Company to recover all or any part of the indebtedness represented by the
Debentures or any action to commence or prosecute any bankruptcy or similar
proceeding in respect of the Company unless the holders of at least a majority
in principal amount of the Senior Notes at the time outstanding (exclusive of
Senior Notes then owned by the Company or any of its Subsidiaries or Affiliates)
shall have agreed in writing in advance to, and shall have joined in, such
proceedings.
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SECTION 14.06 Payment Permitted if No Default.
Nothing contained in this Article XIV or elsewhere in this
Indenture or in any of the Debentures shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 14.02 or under
the conditions described in Sections 14.03 or 14.04, from making payments at any
time of the principal amount, interest or premium on and any Additional Amounts
as may be provided for in this Indenture, as the case may be, in respect of the
Debentures, or (b) the application by the Trustee or the retention by any holder
of any money deposited with it hereunder to the payment of or on account of the
principal of, interest or premium on and any Additional Amounts, as may be
provided for in this Indenture, as the case may be, in respect of the Debentures
if the Trustee did not have, at the time provided in the proviso to the first
paragraph of Section 14.11, notice that such payment would have been prohibited
by the provisions of this Article XIV.
SECTION 14.07 Subrogation Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the holders
of the Debentures of any series shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Debt pursuant to
the provisions of this Article XIV to the rights of the holders of such Senior
Debt to receive payments or distributions of cash, property or securities
applicable to the Senior Debt until the principal of, interest or premium on,
and any Additional Amounts, as provided for in this Indenture, as the case may
be, in respect of the Debentures of such series shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the holders of the
Debentures of such series or the Trustee would be entitled except for the
provisions of this Article XIV, and no payments pursuant to the provisions of
this Article XIV to the Company or to the holders of Senior Debt by holders of
the Debentures of such series or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Debt and the holders of the Debentures of
such series, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
SECTION 14.08 Provision Solely to Define Relative Rights.
The provisions of this Article XIV are and are intended solely
for the purpose of defining the relative rights of the holders of the Debentures
of any series, on one hand, and the holders of Senior Debt, on the other hand.
Nothing contained in this Article XIV or elsewhere in this Indenture or in the
Debentures of any series is intended to or shall:
(a) impair, as between the Company and the holders of the
Debentures of such series, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Debentures of such series the
principal of, interest or premium on and any Additional Amounts, as may be
provided for in this Indenture in respect of the Debentures of such series as
and when the same shall become due and payable in accordance with the terms of
the Debentures
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of such series and this Indenture and which, subject to the rights under this
Article XIV of the holders of Senior Debt, is intended to rank equally with all
other general obligations of the Company; or
(b) affect the relative rights against the Company of the
holders of the Debentures of such series and creditors of the Company other than
holders of Senior Debt; or
(c) prevent the Trustee or the holder of any Debenture of such
series from exercising all remedies otherwise permitted by applicable law upon
any Event of Default under this Indenture, subject to the rights, if any, under
this Article XIV of the holders of Senior Debt to receive cash, property or
securities otherwise payable or deliverable to the Trustee or such holder.
SECTION 14.09 Trustee to Effectuate Subordination.
Each holder of a Debenture by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article XIV and appoints the Trustee such holder's attorney-in-fact for any
and all such purposes.
SECTION 14.10 No Waiver of Subordination Provision.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of, or notice to, the Trustee or the holders of the
Debentures of any series, without incurring responsibility to the holders of the
Debentures of such series and without impairing or releasing the subordination
provided in this Article XIV or the obligations hereunder of the holders of the
Debentures of such series to the holders of Senior Debt, do any one or more of
the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, or increase the amount of, Senior Debt,
or otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding;
(ii) sell, exchange, release or otherwise dispose of or deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any person
liable in any manner for the payment or collection of Senior Debt; (iv) exercise
or refrain from exercising any rights against the Company or any other person;
and (v) apply any sums paid in respect of Senior Debt to Senior Debt, regardless
of who made such payment or how such payment was realized.
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SECTION 14.11 Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Debentures of any series. Failure to give
such notice shall not affect the subordination of the Debentures of such series
to Senior Debt. Notwithstanding the provisions of this Article XIV or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Debentures of such series, unless and until the
Trustee shall have received written notice thereof in the manner prescribed by
this Indenture from the Company or a holder of Senior Debt or from any trustee
or agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 7.01, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received, at least three Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, interest or
premium on or any Additional Amounts as may be provided for in this Indenture in
respect of any Debenture), the notice with respect to such money provided for in
this Section 14.11, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have the full power and authority to receive
such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 7.01, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Debt (or a trustee or agent on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Debt (or a trustee or agent on behalf of any such holder). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article XIV, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such person,
the extent to which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person under
this Article XIV, and if such evidence is not furnished, the Trustee may defer
any payment which it may be required to make for the benefit of such person
pursuant to the terms of this Indenture pending judicial determination as to the
right of such person to receive such payment.
SECTION 14.12 Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article XIV, the Trustee, subject to the provisions of
Section 7.01, and the holders of the Debentures of any series shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate
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of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee
for the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the holders of Debentures of such
series, for the purpose of ascertaining the persons entitled to participate in
such payment or distribution, the holders of Senior Debt and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article XIV.
SECTION 14.13 Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall be deemed not to owe any fiduciary duty to
the holders of Senior Debt. The Trustee shall not be charged with knowledge of
the existence of Senior Debt (other than the Senior Notes) or of any facts that
would prohibit any payment hereunder unless the Trustee shall have received
notice thereof in the manner prescribed by this Indenture. With respect to the
holders of Senior Debt, the Trustee undertakes to perform or to observe only
such of its covenants or obligation as are specifically set forth in this
Article XIV and no implied covenants or obligations with respect to holders of
Senior Debt shall be read into this Indenture against the Trustee.
SECTION 14.14 Rights of Trustee as Holder of Senior Debt; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XIV with respect to any Senior Debt
which may at any time be held by it, to the same extent as any other holder of
Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article XIV shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
SECTION 14.15 Article XIV Applicable to Paying Agents.
The term "Trustee" as used in this Article XIV shall (unless
the context otherwise requires) be construed as extending to and including any
paying agent within its meaning as fully for all intents and purposes as if such
paying agent were named in this Article XIV in addition to or in place of the
Trustee; provided, however, that Sections 14.11 and 14.13 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as paying
agent.
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The First National Bank of Chicago, as Trustee, hereby accepts
the trust in this Indenture declared and provided, upon the terms and conditions
herein above set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
SEITEL, INC.
By
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Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
as Trustee
By
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Name:
Title:
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