TEXAS-NEW MEXICO POWER COMPANY
and
CHASE BANK OF TEXAS, N.A.
as Trustee
INDENTURE
Dated as of
January 1, 1999
Providing for Issuance of Securities
TEXAS-NEW MEXICO POWER COMPANY
Reconciliation and tie between the Trust Indenture Act and Indenture,
dated as of January 1, 1999
Trust Indenture Indenture
Act Section Section
Sec. 310(a)(1)............................................... 6.9
(a)(2)............................................... 6.9
(a)(3)............................................... Not Applicable
(a)(4)............................................... Not Applicable
(a)(5)............................................... 6.9
(b).................................................. 6.8, 6.10
(c).................................................. Not Applicable
Sec. 311 .................................................... 6.13
Sec. 312(a).................................................. 7.1
(b).................................................. 7.2(a)
(c).................................................. 7.2(c)
Sec. 313(a).................................................. 7.3(a)
(b).................................................. 7.3(b)
(c).................................................. 7.3(a)
(d).................................................. 7.3(c)
Sec. 314(a)(1)(2)(3)......................................... 7.4
(a)(4)............................................... 10.4
(b).................................................. Not Applicable
(c)(1)............................................... 1.2
(c)(2)............................................... 1.2
(c)(3)............................................... Not Applicable
(d).................................................. Not Applicable
(e).................................................. 1.2
Sec. 315(a).................................................. 6.1(a), 6.1(c)
(b).................................................. 6.2
(c).................................................. 6.1(b)
(d).................................................. 6.1(c)
(d)(1)............................................... 6.1(a)
(d)(2)............................................... 6.1(c)(2)
(d)(3)............................................... 6.1(c)(3)
(e).................................................. 5.14
Sec. 316(a).................................................. 1.1
(a)(1)(A)............................................ 5.12, 5.14
(a)(1)(B)............................................ 5.13
(a)(2)............................................... Not Applicable
(b).................................................. 5.8
(c).................................................. 1.4(d)
Sec. 317(a)(1)............................................... 5.3
(a)(2)............................................... 5.4
(b).................................................. 10.3
Sec. 318(a).................................................. 1.7
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
ARTICLE 1 Definitions and Other Provisions of General Application.............1
Section 1.1 Definitions......................................................1
"Act" 2
"Affiliate" 2
"Attributable Value" 2
"Authenticating Agent" 2
"Board of Directors" 2
"Board Resolution" 2
"Business Day" 2
"Commission" 2
"Company" 3
"Company Request" and "Company Order" 3
"Consolidated Capitalization" 3
"Corporate Trust Office" 3
"Corporation" 3
"Covenant Defeasance" 3
"Defaulted Interest" 3
"Defeasance" 3
"Depositary" 3
"Event of Default" 3
"Exchange Act" 3
"Federal Bankruptcy Act" 3
"Funded Indebtedness" 4
"Global Security" 4
"Holder" 4
"Indebtedness" 4
"Indenture" 4
"Independent" 5
"Interest" 5
"Interest Payment Date" 5
"Investment Company Act" 5
"Lien" 5
"Maturity" 5
"Net Tangible Assets" 5
"Notice of Default" 5
"Officer" 5
"Officers' Certificate" 5
"Opinion of Counsel" 6
"Original Issue Discount Security" 6
"Outstanding" 6
"Paying Agent" 7
"Periodic Offering" 7
"Person" 7
"Place of Payment" 7
"Predecessor Securities" 7
"Redemption Date" 7
"Redemption Price" 7
"Regular Record Date" 8
"Repayment Date" 8
"Repayment Price" 8
"Responsible Officer" 8
"Sale and Leaseback Transaction" 8
"Securities Act" 8
"Security" 8
"Security Register" 8
"Security Registrar" 8
"Special Record Date" 8
"Stated Maturity" 9
"Subsidiary" 9
"Trust Indenture Act" 9
"Trustee" 9
"U.S. Government Obligations" 9
"Vice President" 9
Section 1.2 Compliance Certificates and Opinions.....................9
Section 1.3 Form of Documents Delivered to Trustee..................10
Section 1.4 Acts of Holders.........................................10
Section 1.5 Notices, etc., to Trustee and Company...................11
Section 1.6 Notices to Holders; Waiver..............................12
Section 1.7 Conflict with Trust Indenture Act.......................12
Section 1.8 Effect of Headings and Table of Contents................12
Section 1.9 Successors and Assigns..................................12
Section 1.10 Separability Clause....................................12
Section 1.11 Benefits of Indenture..................................13
Section 1.12 Governing Law..........................................13
Section 1.13 Legal Holidays.........................................13
Section 1.14 Counterparts...........................................13
Section 1.15 No Recourse Against Others.............................13
ARTICLE 2 Security Forms.............................................13
Section 2.1 Forms Generally.........................................13
Section 2.2 Forms of Securities.....................................14
Section 2.3 Form of Trustee's Certificate of Authentication.........14
Section 2.4 Securities Issuable in the Form of a Global Security....14
ARTICLE 3 The Securities.............................................16
Section 3.1 General Title; General Limitations; Issuable in
Series; Terms of Particular Series...........................16
Section 3.2 Denominations...........................................18
Section 3.3 Execution, Authentication, Delivery and Dating..........18
Section 3.4 Temporary Securities....................................21
Section 3.5 Registration, Transfer and Exchange.....................21
Section 3.6 Xxxxxxxxx, Destroyed, Lost and Stolen Securities........22
Section 3.7 Payment of Interest; Interest Rights Preserved..........23
Section 3.8 Persons Deemed Owners...................................24
Section 3.9 Cancellation............................................24
Section 3.10 Computation of Interest................................25
Section 3.11 Periodic Offering of Securities........................25
Section 3.12 CUSIP Numbers..........................................25
ARTICLE 4 Satisfaction and Discharge.................................25
Section 4.1 Satisfaction and Discharge of Indenture.................25
Section 4.2 Application of Trust Money..............................27
ARTICLE 5 Remedies...................................................27
Section 5.1 Events of Default.......................................27
Section 5.2 Acceleration of Maturity; Rescission and Annulment......28
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee...................................................29
Section 5.4 Trustee May File Proofs of Claim........................30
Section 5.5 Trustee May Enforce Claims Without Possession
of Securities................................................30
Section 5.6 Application of Money Collected..........................31
Section 5.7 Limitation on Suits.....................................31
Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................31
Section 5.9 Restoration of Rights and Remedies......................32
Section 5.10 Rights and Remedies Cumulative.........................32
Section 5.11 Delay or Omission Not Waiver...........................32
Section 5.12 Control by Holders.....................................32
Section 5.13 Waiver of Defaults.....................................32
Section 5.14 Undertaking for Costs..................................33
Section 5.15 Waiver of Stay or Extension Laws.......................33
ARTICLE 6 The Trustee................................................33
Section 6.1 Certain Duties and Responsibilities.....................33
Section 6.2 Notice of Defaults......................................34
Section 6.3 Certain Rights of Trustee...............................35
Section 6.4 Not Responsible for Recitals or Issuance of Securities..36
Section 6.5 May Hold Securities.....................................36
Section 6.6 Money Held in Trust.....................................36
Section 6.7 Compensation and Reimbursement..........................36
Section 6.8 Disqualification; Conflicting Interests.................37
Section 6.9 Corporate Trustee Required; Eligibility.................37
Section 6.10 Resignation and Removal; Appointment of Successor......37
Section 6.11 Acceptance of Appointment by Successor.................39
Section 6.12 Merger, Conversion, Consolidation or Successor
to Business..................................................40
Section 6.13 Preferential Collection of Claims Against Company......40
Section 6.14 Appointment of Authenticating Agent....................43
Section 6.15 No Conflict.............................................44
ARTICLE 7 Holders' Lists and Reports byTrustee and Company...........46
Section 7.1 Company to Furnish Trustee Names and Addresses of
Holders......................................................46
Section 7.2 Preservation of Information; Communications to
Holders......................................................46
Section 7.3 Reports by Trustee......................................47
Section 7.4 Reports by Company......................................48
Section 7.5 Statement by Officers as to Default.....................49
ARTICLE 8 Consolidation, Merger, Conveyance, Transfer or Lease.......49
Section 8.1 Company May Consolidate, etc. Only on Certain Terms.....49
Section 8.2 Successor Corporation Substituted.......................50
ARTICLE 9 Supplemental Indentures....................................50
Section 9.1 Supplemental Indenture Without Consent of Holders.......50
Section 9.2 Supplemental Indentures With Consent of Holders.........51
Section 9.3 Execution of Supplemental Indentures....................52
Section 9.4 Effect of Supplemental Indentures.......................52
Section 9.5 Conformity with Trust Indenture Act.....................52
Section 9.6 Reference in Securities to Supplemental Indentures......53
ARTICLE 10 Covenants.................................................53
Section 10.1 Payment of Principal, Premium and Interest.............53
Section 10.2 Maintenance of Office or Agency........................53
Section 10.3 Money for Security Payments to Be Held in Trust........53
Section 10.4 Statement as to Compliance.............................55
Section 10.5 Corporate Existence....................................55
Section 10.6 Maintenance of Properties..............................55
Section 10.7 Maintenance of Insurance...............................55
Section 10.8 Waiver of Certain Covenants............................55
Section 10.9 Further Assurances.....................................56
Section 10.10 Restrictions on Liens.................................56
Section 10.11 Restrictions on Sale and Leaseback Transactions.......58
Section 10.12 Compliance with Laws...................................58
Section 10.13 Payment of Taxes and Claims............................59
ARTICLE 11 Redemption of Securities..................................59
Section 11.1 Applicability of Article...............................59
Section 11.2 Election to Redeem; Notice to Trustee..................59
Section 11.3 Selection by Trustee of Securities to Be Redeemed......59
Section 11.4 Notice of Redemption...................................60
Section 11.5 Deposit of Redemption Price............................60
Section 11.6 Securities Payable on Redemption Date..................61
Section 11.7 Securities Redeemed in Part............................61
ARTICLE 12 Sinking Funds.............................................61
Section 12.1 Applicability of Article...............................61
Section 12.2 Satisfaction of Sinking Fund Payments with Securities..61
Section 12.3 Redemption of Securities for Sinking Fund..............62
ARTICLE 13Defeasance and Covenant Defeasance ........................62
Section 13.1 Company's Right with Respect to Defeasance or Covenant
Defeasance...................................................62
Section 13.2 Defeasance and Discharge...............................62
Section 13.3 Covenant Defeasance....................................63
Section 13.4 Conditions to Defeasance or Covenant Defeasance........63
Section 13.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions......................65
Section 13.6 Reinstatement..........................................65
INDENTURE dated as of January 1, 1999 (the "Indenture"),
between TEXAS-NEW MEXICO POWER COMPANY, a corporation duly organized and
existing under the laws of the State of Texas (hereinafter called the
"Company"), having its principal place of business at 0000 Xxxxxxxxxxxxx Xxxxx,
Xxxx Xxxxx, Xxxxx 00000 and CHASE BANK OF TEXAS, N.A., a national banking
association, duly organized and existing under the laws of the United States of
America, as trustee hereunder (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more fully registered series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms
and conditions upon which the Securities are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
For all purposes of this Indenture and of any indenture supplemental hereto,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles, and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such United States accounting
principles as are generally accepted at the date of such computation;
(d) all references in this instrument to designated
"Articles," "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instrument. The words "herein," "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision; and
(e) "including" and words of similar import shall be deemed
to be followed by "without limitation."
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Value" in respect of any Sale and Leaseback
Transaction means, as of the time of determination, the lesser of (i) the sale
price of the Property so leased multiplied by a fraction the numerator of which
is the remaining portion of the base term of the lease included in such Sale and
Leaseback Transaction and the denominator of which is the base term of such
lease, and (ii) the total obligation (discounted to present value at the rate of
interest specified by the terms of such lease) of the lessee for rental payments
(other than amounts required to be paid on account of property taxes as well as
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
base term of the lease included in such Sale and Leaseback Transaction.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series under Section 6.14.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Board of Directors 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 each day which is neither a Saturday,
Sunday or other day on which banking institutions in the pertinent Place or
Places of Payment are authorized or required by law or executive order to be
closed.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by any two of the
following: its Chairman of the Board, its Vice Chairman of the Board, President
or a Vice President, its Treasurer, Assistant Treasurer, its Controller,
Assistant Controller, its Secretary or Assistant Secretary, its principal
financial officer, its principal accounting officer or any other officer,
employee or agent of the Company duly authorized by a Board Resolution and
delivered to the Trustee.
"Consolidated Capitalization" of the Company means
consolidated total assets less consolidated non-interest bearing current
liabilities, all as shown by a consolidated balance sheet of the Company and all
Subsidiaries prepared in accordance with generally accepted accounting
principles at the date of such balance sheet.
"Corporate Trust Office" means the principal office of the
Trustee in Dallas, Texas at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000, except that with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which at
any particular time its corporate agency business shall be conducted; and such
other officer as the Trustee may designate from time to time.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
13.3.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 13.2.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 2.4 or Section 3.1, with respect to Securities of any
series issuable or issued as a Global Security, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency
under the Exchange Act or other applicable statute or regulation.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Federal Bankruptcy Act" has the meaning specified in Section
6.13.
"Funded Indebtedness" means notes, bonds, debentures or other
similar evidences of Indebtedness for money borrowed which by its terms matures
at or is extendible or renewable at the option of the obligor to a date more
than 12 months after the date of the creation of such Indebtedness.
"Global Security" means, with respect to any series of
Securities issued hereunder, a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and an indenture
supplemental hereto, if any, or Board Resolution and pursuant to a Company
Request, which shall be registered in the name of the Depositary or its nominee
and which shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Securities of such series
or any portion thereof, in either case having the same terms, including the same
original issue date, date or dates on which principal is due, and interest rate
or method of determining interest.
"Holder", when used with respect to any Security, means the
Person in whose name such Security is registered in the Security Register.
"Indebtedness" means, with respect to any Person (without
duplication), (a) any liability of such Person (1) for borrowed money or under
any reimbursement obligation relating to a letter of credit, financial bond or
similar instrument or agreement, (2) evidenced by a bond, note, debenture or
similar instrument or agreement (including a purchase money obligation) given in
connection with the acquisition of any business, properties or assets of any
kind (other than a trade payable or a current liability arising in the ordinary
course of business or a performance bond or similar obligation), (3) for the
payment of money relating to any obligations under any capital lease of real or
personal property or (4) for purposes of Sections 10.6 and 10.7, under any
agreement or instrument in respect of an interest rate or currency swap,
exchange or hedging transaction or other financial derivatives transaction; (b)
any liability of others described in the preceding clause (a) that the Person
has guaranteed or that is otherwise its legal liability; and (c) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above. For the purpose
of determining any particular amount of Indebtedness under this definition,
guarantees of (or obligations with respect to letters of credit or financial
bonds supporting) Indebtedness otherwise included in the determination of such
amount shall not be included.
"Indenture" or "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 3.1; provided, however, that
if at any time more than one Person is acting as Trustee under this instrument
due to the appointment of one or more separate Trustees for any one or more
separate series of Securities pursuant to Section 6.10, "Indenture" shall mean,
with respect to such series of Securities for which any such Person is Trustee,
this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and including the terms of the
particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.1, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Independent", when used with respect to any specified Person,
means such a Person who (1) is in fact independent, (2) does not have any direct
financial interest or any material indirect financial interest in the Company or
in any other obligor upon the Securities or in any Affiliate of the Company or
of such other obligor, and (3) is not at the relevant time connected with the
Company or such other obligor or any Affiliate of the Company or of such other
obligor, as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions. Whenever it is herein provided
that any Independent Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by a Company Order, and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any series
of Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Investment Company Act" means the Investment Company Act of
1940 and any statute successor thereto, in each case as amended from time to
time.
"Lien" means, with respect to any Property, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such Property (including any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Maturity", when used with respect to any Securities, means
the date on which the principal of any such Security or an installment of
principal becomes due and payable as therein or herein provided, whether on a
Repayment Date, at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Net Tangible Assets" means the amount shown as total assets
on the consolidated balance sheet of the Company prepared in accordance with
generally accepted accounting principles on the date of such balance sheet, less
the following: (i) intangible assets including, but without limitation, such
items as goodwill, trademarks, tradenames, patents and unamortized debt discount
and expense and other regulatory assets carried as an asset on the balance
sheet; and (ii) appropriate adjustments, if any, on account of minority
interests.
"Notice of Default" means a written notice of the kind
specified in Section 5.1(d).
"Officer" means the Chairman of the Board, the Vice Chairman
of the Board, the President or a Vice President, the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by any two
of the following: the Chairman of the Board, the Vice Chairman of the Board, the
President or a Vice President, the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, its principal financial officer, its principal accounting officer
or any other officer, employee or agent of the Company duly authorized by a
Board Resolution, and delivered to the Trustee. Wherever this Indenture requires
that an Officers' Certificate be signed also by an engineer or an accountant or
other expert, such engineer, accountant or other expert (except as otherwise
expressly provided in this Indenture) may be in the employ of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be an employee of
or counsel to the Company. Such counsel shall be acceptable to the Trustee,
whose acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means any Security deemed
an Original Issue Discount Security for United States federal income tax
purposes.
"Outstanding", when used with respect to Securities or
Securities of any series, means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture, except:
(a) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) such Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture and provision therefor satisfactory to the Trustee has been made;
(c) Securities as to which Defeasance has been effected
pursuant to Section 13.2; and
(d) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture, or
which shall have been paid pursuant to the terms of Section 3.6 (except with
respect to any such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a Person in whose hands such Security is
a legal, valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount of such
Securities Outstanding have given, made or taken any request, demand,
authorization, direction, notice, consent or waiver hereunder as of any date,
(A) the principal amount of an Original Issue Discount Security which shall be
deemed to be Outstanding shall be the amount of the principal thereof which
would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 5.2, (B) if, as of such date, the
principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by
Section 3.1, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 3.1, of the principal amount of such
Security (or, in the case of a Security described in clause (A) or (B) above, of
the amount determined as provided in such clause), and (D) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which a Responsible Officer of
the Trustee actually knows to be owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee certifies to the Trustee the pledgee's
right to act as owner with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
"Permitted Encumbrances" has the meaning specified in Section
10.10.
"Periodic Offering" means an offering of Securities of a
series from time to time the specific terms of which Securities, including
without limitation the rate or rates of interest (or formula for determining the
rate or rates of interest), if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment" means, with respect to any series of
Securities issued hereunder, the city or political subdivision in which the
Paying Agent is located and so designated with respect to the series of
Securities in question in accordance with the provisions of Section 3.1, which
if not so designated shall be The City of New York.
"Predecessor Securities" of any particular Security means
every previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a lost, mutilated, destroyed or stolen Security shall be deemed to
evidence the same debt as the lost, mutilated, destroyed or stolen Security.
"Property" of any Person shall mean all such Person's (i)
property and assets and (ii) rights to and interests in all property and assets.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price specified in such Security or pursuant to this
Indenture at which it is to be redeemed pursuant to this Indenture or, if not
specified, at 100% of the outstanding principal amount thereof.
"Regular Record Date" for the interest payable on the
Securities of any series on any Interest Payment Date means the date specified
in such Securities of any series or pursuant to this Indenture as the Regular
Record Date, irrespective of whether such date is a Business Day.
"Repayment Date", when used with respect to any Security to be
repaid at the option of the Holder, means the date fixed for such repayment in
such Security or pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to
be repaid at the option of the Holder, means the price specified in such
Security or pursuant to this Indenture at which it is to be repaid pursuant to
such Security.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer or trust officer, the controller and any assistant
controller, or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Sale and Leaseback Transaction" has the meaning specified in
Section 10.11.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" has the meaning stated in the first recital of this
Indenture and more particularly means any Security authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Security" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean a
Security authenticated and delivered under this Indenture, exclusive, however,
of a Security of any series as to which such Person is not Trustee.
"Security Register" shall have the meaning specified in
Section 3.5.
"Security Registrar" means the Person who keeps the Security
Register specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted
Interest (as defined in Section 3.7) means a date fixed by the Trustee pursuant
to Section 3.7.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation or other business entity of
which the Company owns or controls (either directly or through one or more other
Subsidiaries) more than 50% of the issued share capital or other ownership
interests, in each case having ordinary voting power to elect or appoint
directors, managers or trustees of such corporation or other business entity
(whether or not capital stock or other ownership interests or any other class or
classes shall or might have voting power upon the occurrence of any
contingency).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean and include each Person who is then a Trustee hereunder. If
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"U.S. Government Obligations" means securities that are (1)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof or any other
Person, 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
obligation or a specific payment of principal of or interest on any such
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 obligation or the specific payment of principal of or interest on the
obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president," including an
assistant vice president.
Section 1.2 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee (a) an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and (b) an Opinion of Counsel stating that in the opinion of counsel providing
such Opinion all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance by or
on behalf of the Company with a condition or covenant provided for in this
Indenture (except for the written statement required by Section 10.4) shall
include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such officer, the
officer has made such examination or investigation as is necessary to enable the
person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to the other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such Officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless counsel providing
such Opinion of Counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4 Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of any series
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his or her authority. The fact and date of
the execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, by Board Resolution, fix in advance a record date
for the determination of Holders 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 Holders of
record at the close of business on the record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite proportion of
Securities Outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and
for that purpose the Securities Outstanding shall be computed as of the record
date; provided that no such authorization, agreement or consent by the Holders
on the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than 180 days after the
record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon whether or not notation of such action is made upon such
Security.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any such action with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
Section 1.5 Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attn: Corporate
Trust Department, with a courtesy copy to the Trustee's counsel (which shall not
constitute Notice to the Trustee): XxXxxxx, Craddock, Xxxxxxxx & Xxxx, P.C.,
0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxx 00000, Attn: Xxxxxxx X. XxXxxxx, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as otherwise expressly provided
herein or, in the case of a request for repayment, as specified in the Security
carrying the right to repayment) if in writing and mailed by courier to the
Company addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously furnished
in writing to the Trustee by the Company or telecopied and confirmed by mail.
Section 1.6 Notices to Holders; Waiver. Where this Indenture
or any Security provides for notice to Holders of any event, such notice shall
be sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at its address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
or any Security provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or otherwise, it shall be impractical to
mail notice of any event to any Holder when such notice is required to be given
pursuant to any provision of this Indenture, then any method of notification as
shall be satisfactory to the Trustee and the Company shall be deemed to be a
sufficient giving of such notice.
Section 1.7 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under the Trust Indenture Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.8 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.10 Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture. Nothing in this Indenture
or in any Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent, any
Paying Agent, the Security Registrar, and their successors hereunder and the
Holders of Securities (or such of them as may be affected thereby), any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12 GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 1.13 Legal Holidays. Except as may be otherwise
specified with respect to any particular Securities, in any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date or at the Stated Maturity, and no interest shall accrue on such
payment for the period from and after such Interest Payment Date, Redemption
Date or at the Stated Maturity, as the case may be.
Section 1.14 Counterparts. This instrument may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 1.15 No Recourse Against Others. A director, officer,
employee or shareholder, as such, of the Company, shall not have liability for
any obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
ARTICLE 2
Security Forms
Section 2.1 Forms Generally. The Securities of each series
shall be in substantially the forms set forth in this Article 2, or in such
other form as shall be established by or pursuant to a Board Resolution and set
forth in an Officers' Certificate or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable laws or
regulations or with the rules of any securities exchange or Depositary therefor,
or as may, consistently herewith, be determined by the Officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security. If the form of
Securities of any series is established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, typewritten,
mimeographed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner, all as
determined by the Officers of the Company executing such Securities, as
evidenced by their execution of such Securities, subject, with respect to the
Securities of any series, to the rules of any securities exchange on which such
Securities are listed.
Section 2.2 Forms of Securities. Each Security shall be in the
form of Exhibit A hereto or in one of the forms approved from time to time by or
pursuant to a Board Resolution or established in one or more indentures
supplemental hereto. Prior to the delivery of a Security to the Trustee for
authentication in any form approved by or pursuant to a Board Resolution, the
Company shall deliver to the Trustee the Board Resolution by or pursuant to
which such form of Security has been approved, which Board Resolution shall have
attached thereto a true and correct copy of the form of Security which has been
approved thereby or, if a Board Resolution authorizes a specific person or
persons to approve a form of Security, a certificate of such person or persons
approving the form of Security attached thereto. Any form of Security approved
by or pursuant to a Board Resolution must be acceptable as to form to the
Trustee, such acceptance to be evidenced by the Trustee's authentication of
Securities in that form or a certificate signed by a Responsible Officer of the
Trustee and delivered to the Company.
Section 2.3 Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication for any Security issued
pursuant to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: [ ],
as Trustee
By:
Authorized Signatory
Section 2.4 Securities Issuable in the Form of a Global
Security. (a) If the Company establishes pursuant to Sections 2.2 and 3.1 that
the Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee or its agent shall, in accordance with Section 3.3 and the Company
Request delivered to the Trustee or its agent thereunder, authenticate and make
available for delivery such Global Security or Securities which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Securities of such series to be represented
by such Global Security or Securities or such portion thereof as the Company
shall specify in a Company Request, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, (iii) shall be
made available for delivery by the Trustee or its agent to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear the legends with
respect to Global Securities substantially to the effect set forth in Exhibit A.
(b) Notwithstanding any other provisions of this Section 2.4
or of Section 3.5, but subject to the provisions of paragraph (c) below, unless
the terms of a Global Security expressly permit such Global Security to be
exchanged in whole or in part for individual Securities, a Global Security may
be transferred, in whole but not in part and in the manner provided in Section
3.5, only to a nominee of the Depositary for such Global Security, to the
Depositary, to a successor Depositary for such Global Security selected or
approved by the Company or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the Securities for
such series ceases to be a clearing agency registered under the Exchange Act or
other applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Security. If a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee or its agent, upon receipt of a Company Request
for the authentication and delivery of individual Securities of such series in
exchange for such Global Security, will authenticate and make available for
delivery, individual Securities of such series of like tenor and terms in an
aggregate principal amount equal to the principal amount of the Global Security
in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee or its agent, upon receipt of a Company Request
for the authentication and delivery of individual Securities of such series in
exchange in whole or in part for such Global Security, will authenticate and
make available for delivery individual Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing such series
or portion thereof in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.2 and
3.1 with respect to Securities issued or issuable in the form of one or more
Global Securities, the Depositary for such Global Security or Securities may
surrender such Global Security or Securities in exchange in whole or in part for
individual Securities of such series of like tenor and terms in definitive form
on such terms as are acceptable to the Company and such Depositary. Thereupon
the Company shall execute, and the Trustee or its agent shall authenticate and
make available for delivery, without service charge, (1) to each Person
specified by such Depositary a new Security or Securities of the same series of
like tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security or Securities and (2) to such
Depositary a new Global Security or Securities of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security or Securities and the aggregate
principal amount of Securities delivered to the Holders thereof.
(iv) In any exchange provided for in any of the preceding four
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and make available for delivery individual Securities in definitive
registered form in authorized denominations. Upon the exchange of the entire
principal amount of a Global Security for individual Securities, such Global
Security shall be cancelled by the Trustee or its agent. Except as provided in
the immediately preceding paragraph, Securities issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Security Registrar. The Trustee or the Security
Registrar shall deliver such Securities to the Persons in whose names such
Securities are so registered.
ARTICLE 3
The Securities
Section 3.1 General Title; General Limitations; Issuable in
Series; Terms of Particular Series. The aggregate principal amount of securities
which may be authenticated and delivered and Outstanding under this Indenture is
not limited.
The Securities issued under this Indenture may be issued in
one or more series up to an aggregate principal amount of Securities as from
time to time may be authorized by the Board of Directors. The Securities shall
be direct, unsecured (unless one or more series of Securities is secured
pursuant to the provision of a supplement to this Indenture) obligations of the
Company and shall rank without preference or priority among themselves and pari
passu with all existing and future unsecured and unsubordinated Indebtedness of
the Company, provided, that if any existing or future Indebtedness of the
Company or any Subsidiary or any other Person is secured by any Lien on any
Property of the Company or any Subsidiary, whether such Lien is assumed or
created or otherwise brought into existence prior to the issuance of any
Securities under this Indenture or thereafter, then such Securities shall be
secured to the extent provided in Section 10.10 hereof. All Securities of each
series under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Stated Maturity of the Securities of such series.
Each series of Securities shall be created either by or
pursuant to a Board Resolution or by or pursuant to an indenture supplemental
hereto. The Securities of each such series may bear such date or dates, be
payable at such place or places, have such Stated Maturity or Maturities, bear
interest at such rate or rates (which may be fixed or floating), from such date
or dates, payable in such installments and on such dates and at such place or
places to the Holders of Securities registered as such on the related Regular
Record Dates, or may bear no interest, and may be redeemable or repayable at
such Redemption Price or Prices or Repayment Price or Prices, as the case may
be, whether at the option of the Holder or otherwise, and upon such terms, all
as shall be provided for in or pursuant to the Board Resolution or in or
pursuant to the supplemental indenture creating that series. There may also be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
pursuant to a supplemental indenture prior to the issuance of Securities of each
such series, provision for:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of Securities);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 3.4, 3.5, 3.6, 9.6 or
11.7 hereof and except for any Securities which, pursuant to Section
3.3 hereof, are deemed never to have been authenticated and delivered
hereunder);
(c) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name the
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(d) the date or dates on which the principal or installments
of principal of any Securities of the series is payable and any rights
to extend such date or dates and the duration of such extension;
(e) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series will bear interest or the method by
which such rate or rates shall be determined, the date from which such
interest will accrue or the method by which such date or dates shall be
determined and the right (if any) to extend such dates and the duration
of such extension;
(f) the obligation, if any, of the Company to redeem, repay or
purchase any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
terms and conditions upon which any Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(g) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(h) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2 hereof;
(i) if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public or private debts, the coin or currency in which payment of the
principal of (and premium, if any) and interest, if any, on the
Securities of the series shall be payable and the manner of determining
the equivalent thereof in the currency of the United States of America
for any purpose, including for purposes of the definition of
"Outstanding" in Section 1.1;
(j) if the principal of (and premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election
of the Company or a Holder thereof, in a coin or currency other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(k) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index based on a coin or currency other
than that in which the Securities are stated to be payable or pursuant
to a formula, the manner in which such amounts shall be determined;
(l) any provisions permitted by this Indenture relating to
Events of Default or covenants of the Company with respect to such
series of Securities;
(m) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in which such amount deemed to be the principal amount shall be
determined);
(n) if applicable, that the Securities of the series, in whole
or any specified part, shall not be defeasible pursuant to Section 13.2
or Section 13.3 or both such Sections and, if other than by a Company
Order, the manner in which any election by the Company to defease such
Securities shall be evidenced;
(o) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities, the form of any legend or legends which shall be
borne by any such Global Security in addition to or in lieu of that set
forth in Exhibit A and any circumstances in addition to or in lieu of
those set forth in Sections 2.4, 3.4 and 3.5 in which any such Global
Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(p) providing collateral to the Trustee to secure payment of
the principal of (and premium, if any) and interest on the Securities
of any series, and provisions for the release of any such collateral;
and
(q) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture), including, without
limitation, any terms required or appropriate to establish one or more
series of Securities issued in a Periodic Offering.
All Securities of any one series (other than Securities
offered in a Periodic Offering) shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and set forth in the Officers' Certificate referred
to above or in any such indenture supplemental hereto.
If any of the terms of the series, including the form of
Security of such series, are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action setting forth the
terms of such series shall be certified by the Secretary or an Assistant
Secretary or other authorized officer of the Company, and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
3.3 hereof for the authentication and delivery of such series of Securities.
With respect to Securities of a series offered in a Periodic
Offering, such Board Resolution and Officers' Certificate or supplemental
indenture may provide general terms or parameters for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with other procedures
specified in a Company Order as contemplated by the third paragraph of Section
3.3.
Any terms or provisions in respect of the Securities of any
series issued under this Indenture may be determined pursuant to this Section by
providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
Section 3.2 Denominations. The Securities of each series shall
be issuable in registered form without coupons, except as otherwise expressly
provided in an applicable Officers' Certificate or a supplemental indenture, in
such denominations as shall be specified as contemplated by Section 3.1 hereof.
In the absence of any such provisions with respect to the Securities of any
series, the Securities of that series shall be issuable only in U.S. dollars in
fully registered form without coupons in denominations of $1,000 and any
integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by: its Chairman of
the Board, its Vice Chairman of the Board, its President, one of its Vice
Presidents or its Treasurer. The signature of any of these Officers or agents on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers, employees or agents of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
The Company may at any time and from time to time after the
execution and delivery of this Indenture deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, or, in the
case of Securities offered in a Periodic Offering, from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of electronic instructions from the Company or its duly
authorized agents, promptly confirmed in writing by the Company) acceptable to
the Trustee as may be specified from time to time by a Company Order for the
specific terms of the Securities being so offered; and the Trustee shall, in
accordance with a Company Order, authenticate and make available for delivery
such Securities as provided in this Indenture and not otherwise.
Prior to any such authentication and delivery, the Trustee
shall be entitled to receive, in addition to any Officers' Certificate and
Opinion of Counsel required to be furnished to the Trustee pursuant to Section
1.2, and the Board Resolution and any certificate relating to the issuance of
the series of Securities required to be furnished pursuant to Section 2.2, and
shall be fully protected in relying upon, an Opinion of Counsel stating that:
(a) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted by Section
2.1 hereof, that such form has been established in conformity with the
provisions of this Indenture;
(b) the terms of such Securities have been established in
conformity with the provisions of this Indenture; and
(c) such Securities, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued
by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities;
provided, however, that, with respect to Securities of a series offered
in a Periodic Offering, the Trustee shall be entitled to receive such
Opinion of Counsel in connection only with the first authentication of
Securities of such series, and in such case the opinions described in
clauses (b) and (c) above may state, respectively, that
(i) if the terms of such Securities are to
be established pursuant to a Company Order or pursuant to such
procedures as may be specified from time to time by a Company
Order, all as contemplated by a Board Resolution or action
taken pursuant thereto, such terms will have been duly
authorized by the Company and established in conformity with
the provisions of this Indenture; and
(ii) that such Securities, when completed by
appropriate insertions and executed and delivered by the
Company to the Trustee in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture, and issued and delivered by the Company and
paid for, all in accordance with any agreement of the Company
relating to the offering, issuance and sale of such
Securities, will be duly issued under this Indenture and will
constitute the legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting
generally the enforcement of creditors' rights, to general
equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of
Holders of such Securities and any coupons;
and, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, also stating
that all laws and requirements with respect to the form and execution
by the Company of the supplemental indenture with respect to that
series of Securities have been complied with; the Company has corporate
power to execute and deliver any such supplemental indenture and has
taken all necessary corporate action for those purposes; and any such
supplemental indenture has been executed and delivered and constitutes
the legal, valid and binding obligation of the Company enforceable in
accordance with its terms (subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and to general
principles of equity); and
(d) that no consent, approval, authorization, order,
registration or qualification of or with any court or any governmental
agency or body having jurisdiction over the Company is required for the
execution and delivery of such Securities by the Company, except such
as have been obtained (except that no opinion need be expressed as to
the state securities or Blue Sky laws).
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature of an Authenticating Agent,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of the Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.9, together
with a written statement (which need not comply with Section 1.2 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and, upon receipt
of the documents required by Section 3.3, together with a Company Order, the
Trustee shall authenticate and make available for delivery, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder; and upon surrender for cancellation
of any one or more temporary Securities of any series the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations and of like tenor and aggregate principal amount. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
Upon any exchange of a portion of a temporary Global Security
for a definitive Global Security or for the individual Securities represented
thereby pursuant to this Section 3.4 or Section 3.5, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
Section 3.5 Registration, Transfer and Exchange. The Company
shall keep or cause the Security Registrar to keep a register (herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities, or of Securities of a particular series, and for transfers of
Securities or of Securities of such series. Any such register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. If the Company maintains such Security Register, at
all reasonable times the information contained in such register or registers
shall be available for inspection by the Trustee at the office or agency to be
maintained by the Company as provided in Section 10.2.
Subject to Section 2.4, upon surrender for registration of
transfer of any Security of any series at the office or agency of the Company in
a Place of Payment for that series, the Company shall execute, and the Trustee
or its agent shall authenticate and make available for delivery, in the name of
the designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like tenor, aggregate principal
amount and Stated Maturity.
Subject to Section 2.4, at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same
series of any authorized denominations and of a like tenor, aggregate principal
amount and Stated Maturity, upon surrender of the Securities to be exchanged at
such office or agency maintained by the Company in any Place of Payment for such
series. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee or its agent shall authenticate and make
available for delivery, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Security to be registered for
transfer or exchange, no service charge shall be imposed on any Holder for any
registration of transfer or exchange of Securities, but the Company may (unless
otherwise provided in such Security) require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with registration of any transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company may but shall not be required (i) to issue,
register the transfer of or exchange any Security of any series during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of such series selected for redemption under
Section 11.3 and ending at the close of business on the date of such mailing,
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except for the portion of such Security not so
selected for redemption or (iii) to register the transfer of or exchange any
Security between any Regular Record Date and the related Interest Payment Date.
None of the Company, the Trustee, any agent of the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Neither the Company nor the Trustee shall have any
responsibility or obligation to any participant in the Depositary, any Person
claiming a beneficial ownership interest in the Securities under or through the
Depositary or any such participant, or any other Person which is not shown on
the Security Register as being a Holder, with respect to (1) the Securities; (2)
the accuracy of any records maintained by the Depositary or any such
participant; (3) the payment by the Depositary or any such participant of any
amount in respect to the principal of or premium or interest on the Securities;
(4) any notice which is permitted or required to be given to Holders of
Securities under this Indenture; or (5) any consent given or other action taken
by the Depositary as Holder of Securities.
The Company initially appoints the Trustee to act as Security
Registrar for the Securities on its behalf. The Company may at any time and from
time to time authorize any Person to act as Security Registrar in place of the
Trustee with respect to any series of Securities issued under this Indenture.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee or the Company, and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Security, and (b) there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them and
their agents harmless, then, in the absence of actual notice to the Company and
the Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee or its agents shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Security
or in exchange for such mutilated Security, a new Security of like tenor,
series, Stated Maturity and principal amount, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee, any Paying Agent and
any Securities Registrar) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security or in exchange for
such mutilated Security shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and such new
Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided with respect to any series of Securities pursuant to
Section 3.1, interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of its having been such
Holder; and, except as hereinafter provided, such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause (a) or
clause (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security of such series and
the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given to each Holder of such
series in the manner set forth in Section 1.6, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of, or in
exchange for, or in lieu of any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which rights were carried by such
other Security.
Section 3.8 Persons Deemed Owners. Prior to the due
presentment for registration of transfer of any Security, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Holder of such
Security as its owner for the purpose of receiving payment of principal of (and
premium, if any), and (subject to Section 3.7) interest on, such Security and
for all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
No holder of any beneficial interest in any Global Security
held on its behalf by a Depositary (or its nominee) shall have any rights under
this Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any Depositary, as a Holder, with
respect to such Global Security or shall impair, as between such Depositary and
owners of beneficial interests in such Global Security, the operation of
customary practices governing the exercise of the rights of such Depositary (or
its nominee) as Holder of such Global Security.
Section 3.9 Cancellation. All Securities surrendered for
payment, redemption, repurchase, registration of transfer, conversion or
exchange or for credit against any sinking fund, if any, shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and, if not
already cancelled, shall be promptly cancelled by the Trustee. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No Security
shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
Company Order.
Section 3.10 Computation of Interest. Unless otherwise
provided as contemplated in Section 3.1, interest on the Securities of any
series shall be calculated on the basis of a 360-day year of twelve 30-day
months.
Section 3.11 Periodic Offering of Securities. Notwithstanding
any contrary provision herein, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary for the Company to
deliver to the Trustee an Officers' Certificate, Board Resolution, supplemental
indenture, Opinion of Counsel or Company Request otherwise required pursuant to
Sections 2.2, 3.1 and 3.3 at or prior to the time of authentication of each
Security of such series if such documents are delivered to the Trustee or its
agent at or prior to the authentication upon original issuance of the first
Security of such series to be issued; provided that any subsequent request by
the Company to the Trustee to authenticate Securities of such series upon
original issuance shall constitute a representation and warranty by the Company
and its counsel that as of the date of such request, the statements made in the
Officers' Certificate and opinions made in the Opinion of Counsel delivered
pursuant to Section 1.2 and 3.3, respectively, were true and correct as if made
on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the circumstances set
forth in the immediately preceding paragraph may provide that Securities which
are the subject thereof will be authenticated and delivered by the Trustee or
its agent on original issue from time to time upon the written order of a person
or persons designated in such Officers' Certificate, supplemental indenture or
Board Resolution (any such telephonic instructions to be confirmed promptly in
writing by such person or persons) and that such person or persons are
authorized to determine, consistent with such Officers' Certificate,
supplemental indenture or Board Resolution, such terms and conditions of the
Securities as are specified in such Officers' Certificate, supplemental
indenture or Board Resolution.
Section 3.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) in addition to
serial numbers, and, if so, the Trustee shall use "CUSIP" numbers in addition to
serial numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such "CUSIP" numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the serial or other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in such
"CUSIP" numbers.
ARTICLE 4
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall, upon Company Request, cease to be of further effect with
respect to any series of Securities (except as to any surviving rights of
registration of transfer or exchange or replacement of Securities of such series
expressly provided for herein or in the form of security for such series), and
the Trustee, on written demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when
(a) either
(i) all Securities of that series theretofore authenticated
and delivered (other than (1) Securities of such series which
have been mutilated, destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6, and (2)
Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to issued under
this Indenture delivered to the Trustee or its agent cancelled
or for cancellation; or
(ii) all such Securities of that series not theretofore
delivered to the Trustee or its agent cancelled or for
cancellation
(1) have become due and payable,
(2) will become due and payable at their Stated
Maturity within one year,
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, or
(4) are deemed paid and discharged pursuant to Section 13.2,
as applicable,
and the Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee, as trust funds in trust for
the purpose, money in an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee canceled or for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case of
Securities which have become due and payable), or to the Stated
Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Securities of such
series; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series of Securities, the obligations of the Company to the Trustee with
respect to such series under Section 6.7, the obligations of the Trustee to any
Authenticating Agent under Section 6.14 and, if money shall have been deposited
with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the
obligations of the Trustee under Sections 4.2 and 10.3 shall survive.
Section 4.2 Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the series of Securities and this Indenture,
to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money has been deposited with the Trustee.
ARTICLE 5
Remedies
Section 5.1 Events of Default. "Event of Default," wherever
used herein with respect to Securities of any series, and unless otherwise
provided with respect to Securities of any series pursuant to Section 3.1(l),
means any one of the following events (whatever the reason for such Event of
Default and whether it is voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless such
event is either inapplicable to a particular series (to the extent expressly
provided in the form of Security for such series) or it is specifically deleted
or modified in the supplemental indenture creating such series of Securities or
in the form of Security for such series:
(a) default by the Company in the payment of any principal (or
premium, if any) of the Securities of that series when due and payable,
whether at Maturity or otherwise; or
(b) default by the Company in the payment of any interest upon
any Security of that series when it becomes due and payable, and the
continuance of such default for a period of 30 consecutive days; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 consecutive days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) a default under any Indebtedness by the Company or any
Subsidiary (including a default with respect to Securities of any
series other than that series) or under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness by the Company (including this
Indenture) or any Subsidiary, whether such Indebtedness now exists or
shall hereafter be created, in an aggregate principal amount exceeding
$10,000,000 (or its equivalent in any other currency or currencies)
which default shall have resulted in such Indebtedness becoming or
being declared due and payable; or
(f) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(g) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(h) any other Event of Default provided with respect to
Securities of that series.
Section 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event of Default specified in
Section 5.1(e) or 5.1(f)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the aggregate principal amount of all the
Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such lesser portion of the aggregate principal amount
of such Securities as may be specified by the terms thereof) to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such aggregate principal
amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in Section 5.1(e) or 5.1(f) with respect to
Securities of any series at the time Outstanding occurs, the aggregate principal
amount of all the Securities of that series (or, if any Securities of that
series are Original Issue Discount Securities, such lesser portion of the
aggregate principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Outstanding Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on all Securities of that series,
(ii) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(b) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon written demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may at its discretion proceed to
protect and enforce its rights and the rights of the Holders of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, moratorium of payments, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of, and any
interest on, the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceedings
or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and take such other actions, including
participating as a member, voting or otherwise, of any official
committee of creditors appointed in such matter, to file such other
papers or documents as may be necessary and advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and all other amounts due the Trustee under Section
6.7) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official, in any such judicial proceeding is hereby authorized by
each Holder to make such payment to the Trustee and, in the event that the
Trustee consents to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of such Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or, the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected. Any money
collected by the Trustee with respect to a series of Securities pursuant to this
Article 5 shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the Securities
of such series and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid upon
the Securities of that series for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (premium, if any) and interest,
respectively.
Section 5.7 Limitation on Suits. No Holder of any Security of
any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
such series;
(b) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of such series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have furnished to the Trustee
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and furnishing of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of all Securities of such series.
Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Sections 3.7 and 12.1) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on the Redemption Date or Repayment Date, as the case
may be) and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the Company, the Trustee and the Holders shall, subject
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not. No delay in exercising or
omission to exercise any remedy, right or power accruing upon the occurrence of
any Event of Default shall impair the remedy, right or power, or shall be
construed to be a waiver of any Event of Default or acquiescence therein. Every
remedy, right and power may be exercised from time to time and as often as may
be deemed to be expedient. No waiver of any Event of Default, whether by the
Trustee or by the Holders, shall extend to or shall affect any subsequent Event
of Default or shall impair any remedy, right or power consequent thereon.
Section 5.12 Control by Holders. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series;
provided that
(a) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, determines
that the action so directed may not lawfully be taken or would conflict
with this Indenture;
(b) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to Holders not taking part in such
action;
(c) such direction shall be presented by such Holders to the
Trustee in a timely manner;
(d) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(e) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13 Waiver of Defaults. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past or existing default hereunder with respect to such series and its
consequences, except a default not theretofore cured
(a) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any
sinking or purchase fund or analogous obligation with respect to the
Securities of such series, or
(b) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by such Xxxxxx's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section 5.14 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series to which the suit relates against the
Company and not the Trustee, or to any suit instituted by any Holder against the
Company and not the Trustee for the enforcement of the payment of the principal
of (or premium, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date).
Section 5.15 Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
The Trustee
Section 6.1 Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default with respect to any series of
Securities,
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to the Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; 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
or contents stated therein).
(b) If an Event of Default with respect to any series of
Securities has occurred and is continuing of which a Responsible Officer of the
Trustee has actual knowledge, the Trustee shall exercise with respect to the
Securities of such 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 man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) 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
(i) this subsection (c) shall not be construed to limit the
effect of subsection (a) of this Section 6.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) 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 a majority in aggregate principal
amount of the Outstanding Securities of any series (or such lesser
percentage as provided in this Indenture) 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 Securities of such series.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 6.1.
Section 6.2 Notice of Defaults. Within 90 days after the
Trustee has received written notice of any default hereunder with respect to
Securities of any series, the Trustee shall transmit by mail to all Holders of
such series, as their names and addresses appear in the Security Register,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest, if
any, on any Security of such series, or in the payment of any sinking fund
installment with respect to Securities of such 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 such series; and provided further
that in the case of any default of the character specified in Section 5.1(d)
with respect to Securities of such series, no such notice to Holders of such
series shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section 6.2, the term "default," with respect to Securities
of any series, means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 6.3 Certain Rights of Trustee. Except as otherwise
provided in Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other evidence of Indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have furnished to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness or other paper or document, but
the Trustee, in its sole discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled upon reasonable request to examine the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any
default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture; and
(j) the permissive right of the Trustee to take or refrain
from taking any actions enumerated in this Indenture shall not be construed as a
duty and the Trustee shall not be answerable in such actions other than for its
own negligence, bad faith or willful misconduct in exercising any such right.
Section 6.4 Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. Neither the Trustee nor any Authenticating
Agent makes any representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent
shall be accountable for the use or application by the Company of Securities or
the proceeds thereof.
Section 6.5 May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, the Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and, subject to Sections 6.8 and
6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
The Trustee may become and act as Trustee under other
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding in the same
manner as if it were not Trustee hereunder.
Section 6.6 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as the Trustee has otherwise agreed in
writing with the Company.
Section 6.7 Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree to in
writing for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses, including
taxes (other than taxes based upon, measured by, or determined by the income of
the Trustee), disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Trustee (and its directors, officers,
employees and agents) and any predecessor Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the reasonable costs
and expenses and reasonable attorneys' fees of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section 6.7 to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional Indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of the
obligations of the Company under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(e) or Section
5.1(f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
Any Paying Agent or Authenticating Agent appointed hereunder
shall be entitled to the benefits of Section 6.7(c) as if the indemnity set
forth therefor were specifically afforded to such Paying Agent or Authenticating
Agent.
The provisions of this Section shall survive the termination
of this Indenture.
Section 6.8 Disqualification; Conflicting Interests. The
Trustee for the Securities of any series issued hereunder shall be subject to
the provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) the Securities of every
other series issued under this Indenture. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
Section 6.9 Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder with respect to the Securities of each
series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by
the Trust Indenture Act, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee with respect to the
Securities of any series shall cease to be eligible in accordance with the
provisions of this Section 6.9, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article 6.
Section 6.10 Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to any one
or more series of Securities by giving written notice thereof to the Company. If
an instrument of acceptance by a successor Trustee required by Section 6.11
hereof shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to any
one or more series of Securities by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that series,
delivered to the Trustee and to the Company. If the instrument of acceptance by
a successor Trustee required by Section 6.11 hereof shall not have been
delivered to the Trustee within 30 days after the delivery of such Act, the
removed Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(i) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 6.8 with respect to any series
of Securities after written request therefor by the Company or by any
Holder who has been a Holder of a Security of that series for at least
six months, or
(ii) the Trustee ceases to be eligible under Section 6.9 with
respect to any series of Securities and fails to resign after written
request therefor by the Company or by any such Holder, or
(iii) the Trustee becomes incapable of acting with respect to
any series of Securities, or
(iv) the Trustee is adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property is appointed or any public
officer takes 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, (1) the Company by a Board Resolution may remove the
Trustee, with respect to the Securities of that series, or in the case of clause
(iv), with respect to all series, or (2) subject to Section 5.14, any Holder who
has been a Holder of a Security of such series for at least six months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to the series, or, in the case of clause (iv),
with respect to all series.
(e) If the Trustee resigns, is removed or becomes incapable of
acting with respect to any series of Securities, or if a vacancy occurs in the
office of the Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 6.11. If, within one
year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities is
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of such series delivered to the Company and the
predecessor Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 6.11 hereof, become the successor Trustee with respect
to such series and supersede the successor Trustee appointed by the Company with
respect to such series. If no successor Trustee with respect to such series has
been so appointed by the Company or the Holders of such series and accepted
appointment in the manner required by Section 6.11 hereof, any Holder who has
been a Holder of a Security of that series for at least six months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities of that series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 6.11 Acceptance of Appointment by. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective with respect to any series as to which it is resigning or being
removed as Trustee, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to any such series; but, on request of
the Company or the successor Trustee, such predecessor Trustee shall, upon
payment of its reasonable charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
predecessor Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such predecessor Trustee
hereunder with respect to all or any such series, subject nevertheless to its
lien, if any, provided for in Section 6.7. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the predecessor Trustee and each successor Trustee with respect to the
Securities of such one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (i) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (ii) if the predecessor Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of that or those series as to
which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall deem such
Trustees to be co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
predecessor Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such predecessor Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
predecessor Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the first or second preceding paragraph, as the case may be.
No successor Trustee with respect to any series of Securities
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to that series
under this Article 6.
Section 6.12 Merger, Conversion, Consolidation or Successor to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all 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. In case any Securities shall have been
authenticated, but not delivered, 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 Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against
Company. (a) Subject to subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities (as defined in
subsection (c) of this Section):
(i) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three-month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (ii) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(ii) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such
three-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(1) to retain for its own account (x) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (y) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (z) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act, or applicable
state law;
(2) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three-month period;
(3) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default as defined in subsection (c) of this Section would occur
within three months; or
(4) to receive payment on any claim referred to in paragraph
(2) or (3), against the release of any property held as security for
such claim as provided in paragraph (2) or (3), as the case may be, to
the extent of the fair value of such property.
For the purpose of paragraphs (2), (3) and (4), property
substituted after the beginning of such three-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee is required to account for the assets of its
trust, the funds and property held in such special account and the proceeds
thereof shall be apportioned between the Trustee, the Holders and the holders of
other indenture securities in such manner that the Trustee, the Holders and the
holders of other indenture securities realize, as a result of payments from such
special account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable state law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee and the Holders and the holders of other indenture securities dividends
on claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable state law, but after crediting thereon receipts on account of the
Indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable state law, whether such distribution is
made in cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustees and the
Holders and the holders of other indenture securities in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Holders and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the provisions of this
subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three-month
period, it shall be subject to the provisions of this subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three-month
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section 6.13 a creditor relationship arising from
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an Indebtedness created as a result of services rendered
or premises rented; or an Indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section 6.13;
(5) the ownership of stock or of the other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 6.13.
(c) For the purpose of this Section 6.13 only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor (as defined in the Trust Indenture
Act) outstanding under any other indenture (i) under which the Trustee
is also trustee, (ii) which contains provisions substantially similar
to the provisions of this Section 6.13 and (iii) under which a default
exists at the time of the apportionment of the funds and property held
in such special account.
(3) The term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "Federal Bankruptcy Act" means the Bankruptcy
Code or Title 11 of the United States Code.
Section 6.14 Appointment of Authenticating Agent. From time to
time the Trustee, in its sole discretion, may appoint one or more Authenticating
Agents with respect to one or more series of Securities with power to act on the
Trustee's behalf and subject to its direction in the authentication and delivery
of Securities of such series or in connection with transfers and exchanges under
Sections 3.4, 3.5, 3.6 and 11.7 hereof as fully to all intents and purposes as
though the Authenticating Agent had been expressly authorized by those Sections
of this Indenture to authenticate and deliver Securities of such series. For all
purposes of this Indenture, the authentication and delivery of Securities by an
Authenticating Agent pursuant to this Section 6.14 shall be deemed to be
authentication and delivery of such Securities "by the Trustee". Each such
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States, any state thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal,
state or District of Columbia authority. If such corporation publishes reports
of condition at least annually pursuant to law or the requirements of such
authority, then for the purposes of this Section 6.14 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.14, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.14.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section 6.14, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and, if other than the Company, to the
Company. The Trustee may at any time terminate the appointment of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and, if other than the Company, to the Company. Upon receiving such a
notice of resignation or upon each a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for any payments made by it
subject to the provisions of Section 6.7.
If an appointment with respect to one or more series of
Securities is made pursuant to this Section 6.14, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
ARTICLE 7
Holders' Lists and Reports by
Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the
Trustee with respect to the Securities of each series
(a) semi-annually, not later than 15 days after each Regular
Record Date, or, in the case of any series of Securities on which
semi-annual interest is not payable, not more than 15 days after such
semi-annual dates as may be specified by the Trustee, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders as of such Regular Record Date or semi-annual date, as
the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished, provided, however, that if
and so long as the Trustee is Security Registrar for any series of
Securities, no such list shall be required to be furnished with respect
to any such series.
Section 7.2 Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 7.1 hereof and
the names and addresses of Holders of Securities received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to it
as provided in Section 7.1 hereof upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any 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
Security of such series 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 Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 7.2(a) hereof, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.2(a) hereof, and
as to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
If the Trustee elects not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or to all Holders,
as the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 7.2(a) hereof, 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 in connection with such mailing, unless, within five days
after such tender, the Trustee mails to such applicants and files 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 Securities of such series or
all Holders, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, enters 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 finds, after notice and opportunity for hearing, that
all the objections so sustained have been met and enters an order so declaring,
the Trustee shall mail copies of such material to all Holders of such series or
all Holders, as the case may be, with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with Section 7.2(b) hereof, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.2(b)
hereof.
Section 7.3 Reports by Trustee. (a) The term "reporting date"
as used in this Section means May 15. Within 60 days after the reporting date in
each year, beginning in 1999, the Trustee shall transmit by mail to all Holders,
as their names and addresses appear in the Security Register, a brief report
dated as of such reporting date with respect to any of the following events
which may have occurred during the 12 months immediately preceding the date of
such report (but if no such event has occurred within such period no report need
be transmitted):
(1) any change to its eligibility under Section 6.9 hereof and
its qualifications under Section 6.8 hereof;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of Securities of any series, on
any property or funds held or collected by it as Trustee, except that
the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of the Securities of such series
outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other Indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except an Indebtedness based upon a
creditor relationship arising in any manner described in Section
6.13(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has
not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of
a default, notice of which has been or is to be withheld by the Trustee
in accordance with Section 6.2.
(b) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstance surrounding the making thereof) made by the
Trustee (as such) since the date of the last report transmitted pursuant to
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities of any series, on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or less of
the principal amount of the Securities outstanding of such series at such time,
such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 7.4 Reports by Company. The Company shall
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
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 said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
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;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security 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 paragraph (a) and (b) of
this Section 7.4 as may be required by rules and regulations prescribed from
time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 7.5 Statement by Officers as to Default. The Company
shall deliver to the Trustee, as promptly as is practicable and in any event
within five days after the Company becomes aware of the occurrence of any Event
of Default, or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, etc. Only on Certain
Terms. The Company shall not consolidate with or merge with or into any other
Person (whether or not the Company shall be the surviving corporation) or sell,
convey, transfer or lease its properties and assets substantially as an entirety
to any Person or group of affiliated Persons, in one transaction or a series of
related transactions, unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance,
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
validly existing under the laws of the United States of America, any
state thereof or the District of Columbia, and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(b) immediately after giving effect to such transaction and
treating any Indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been incurred
by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(c) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such
steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all Indebtedness secured
thereby; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer and lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 8.2 Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 8.1 hereof, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein. In the event of any such
conveyance or transfer, but not in the case of a lease, the Company as the
predecessor corporation may be dissolved, wound up or liquidated at any time
thereafter and the Company, except in the case of a lease, shall be discharged
from all obligations under this Indenture and the Securities.
ARTICLE 9
Supplemental Indentures
Section 9.1 Supplemental Indenture Without Consent of Holders.
Without the consent of the Holders of any Securities, the Company, when
authorized by or pursuant to a Board Resolution or a Company Order, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(b) to add to the covenants of the Company for the benefit of
the Holders of the Securities of any or all series (and if such
covenants or the surrender of such right or power are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included or such surrenders are expressly
being made solely for the benefit of one or more specified series), or
to surrender any right or power herein conferred upon the Company;
(c) to cure any ambiguity or defect, to correct or supplement
any provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture or the Securities or make any
other changes herein or therein;
(d) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series);
(e) to comply with any requirement in order to effect or
maintain the qualification of this Indenture under the Trust Indenture
Act;
(f) to establish any form of Security, as provided in Article
2, and to provide for the issuance of any series of Securities as
provided in Article 3 and to set forth the terms thereof, and/or to add
to the rights of the Holders of the Securities of any series;
(g) to secure the Securities pursuant to the requirements of
Section 3.1 or Section 10.10 or otherwise;
(h) to establish the form or terms of Securities of any series
as permitted by Sections 2.1, 2.2 and 3.1;
(i) to evidence and provide for the acceptance of appointment
by another Person as a successor Trustee hereunder with respect to one
or more series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11 hereof; or
(j) to provide for the issuance of Securities in bearer form
with coupons as well as fully registered form.
No supplemental indenture for the purposes identified in
clause (b), (c) or (f) above may be entered into if to do so would adversely
affect the interest of the Holders of Securities of any series.
Section 9.2 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture or indentures, by Act of said Holders delivered to the
Company and the Trustee, when authorized by or pursuant to a Board Resolution or
a Company Order, the Company and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of the Securities of each
such series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent or affirmative vote of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal or interest, if any, on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or reduce the amount
of the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2, or change
any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Maturity or the Stated Maturity, as the case may be, thereof
(or, in the case of redemption or repayment, on or after the Redemption
Date or the Repayment Date, as the case may be);
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or with certain defaults hereunder and
their consequences, or the declaration of certain defaults hereunder,
provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.8, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 10.8, or the deletion of this proviso, in accordance with
the requirements of Sections 6.11 and 9.1(i).
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures In executing
or accepting the additional trusts created by any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that such supplemental indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms. The Trustee may, but shall not (except to the extent
required in the case of a supplemental indenture entered into under Sections
9.1(c), 9.1(f) or 9.1(i)) be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby to the extent provided therein.
Section 9.5 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE 10
Covenants
Section 10.1 Payment of Principal, Premium and Interest. With
respect to each series of Securities, the Company will duly and punctually pay
the principal of (and premium, if any) and interest on such Securities of that
series in accordance with their terms and this Indenture, and will duly comply
with all the other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
Section 10.2 Maintenance of Office or Agency. So long as any
of the Securities of a series remain outstanding, the Company will maintain an
office or agency in each Place of Payment where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange and where notice and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If at any time the Company fails to
maintain any such required office or agency or fails to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 10.3 Money for Security Payments to Be Held in Trust.
If the Company at any time acts as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of (or premium,
if any) or interest on, any of the Securities of such series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (or premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure to so act.
Whenever the Company has one or more Paying Agents for any
series of Securities, it will, not later than 10:00 A.M., New York City time, on
or prior to each due date of the principal of (and premium, if any) or interest
on, any Securities of such series, deposit with a Paying Agent a sum in
immediately available funds sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal (and premium, if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure to so act.
The Company will cause each Paying Agent other than the
Trustee for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(a) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any such payment of principal (and premium, if any) or interest on the
Securities of such series; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of
the Securities of such series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent in respect of each and every series of Securities as to which it
seeks to discharge this Indenture or, if for any other purpose, all sums to be
held in trust by the Company in respect of all Securities, such sums to be held
by the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease. The Trustee or such Paying
Agent, before being required to make any such repayment, may at the request and
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains, a notice that such moneys remain unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company.
The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time and from
time to time authorize one or more Persons to act as Paying Agent in addition to
or in place of the Trustee with respect to any series of Securities issued under
this Indenture.
Section 10.4 Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
written statement signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating that
(a) a review of the activities of the Company during such year
and of the Company's performance under this Indenture and under the
terms of the Securities has been made under his supervision; and
(b) to the best of his knowledge, based on such review, the
Company has complied with all conditions and covenants under this
Indenture through such year, or, if there has been a default in the
fulfillment of any such obligation (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company
shall be in default, specifying all such defaults and the nature and
status thereof of which he may have knowledge, specifying each such
default known to him and the nature and status thereof.
Section 10.5 Corporate Existence. Subject to Article 8, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and will use its best efforts to
do or cause to be done all things necessary to preserve and keep in full force
and effect its rights (charter and statutory) and franchises and such rights and
franchises of its Subsidiaries; provided, however, that the Company shall not be
required to preserve or to cause its Subsidiaries to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 10.6 Maintenance of Properties. The Company will cause
all tangible properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with such necessary equipment and will cause to
be made such necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be reasonably
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 10.6 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 10.7 Maintenance of Insurance. The Company will
maintain, and will cause each of its Subsidiaries to maintain, with insurers the
Company reasonably believes to be financially sound and reputable, insurance
deemed adequate by the Company with respect to its properties and business and
the properties and business of its Subsidiaries against loss or damage of the
kinds customarily insured against by corporations in the same or similar
business. Such insurance may be subject to co-insurance deductibility or similar
clauses which, in effect, result in self-insurance of certain losses, provided
that each self-insurance is in accord with the practices of corporations in the
same or similar business and adequate insurance reserves are maintained in
connection with such self-insurance.
Section 10.8 Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any term, provision or condition set
forth in Sections 9.1(b), 10.9, 10.10 or 10.11 hereof, inclusive, with respect
to the Securities of any series if before the time for such compliance the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 10.9 Further Assurances. The Company shall, at its own
cost and expense, execute and deliver to the Trustee all such other documents,
instruments, and agreements and do all such other acts and things as may be
reasonably required, in the opinion of the Trustee, to enable the Trustee to
exercise and enforce its right under this Indenture and under the documents,
instruments and agreements required under this Indenture and to carry out the
intent of this Indenture.
Section 10.10 Restrictions on Liens. To the extent this
covenant is made applicable to the Securities of a particular series, the
Company will not, and will not permit any Subsidiary to, incur, issue, assume,
guarantee or permit to exist Indebtedness secured by any Lien of the Company or
any Subsidiary upon any of its respective Property, or upon shares of capital
stock or evidences of Indebtedness issued by any Subsidiary and owned by the
Company or any Subsidiary, whether owned at the date of this Indenture or
thereafter acquired, without making, or causing such Subsidiary to make,
effective provision to secure all of the Securities then Outstanding by such
Lien, equally and ratably with any and all other Indebtedness thereby secured,
so long a such Indebtedness shall be so secured.
The foregoing restrictions shall not apply to Indebtedness
secured by Liens existing on the date of this Indenture or by any of the
following (the "Permitted Encumbrances"):
(a) Liens on any Property acquired, constructed or improved by
the Company or any Subsidiary after the date of this Indenture which
are created or assumed contemporaneously with such acquisition,
construction or improvement, or within 180 days after the completion
thereof, to secure or provide for the payment of all or any part of the
cost of such acquisition, construction or improvement (including
related expenditures capitalized for federal income tax purposes in
connection therewith) incurred after the date of this Indenture;
(b) Liens of or upon any property, shares of capital stock or
Indebtedness existing at the time of acquisition thereof, whether by
merger, consolidation, purchase, lease or otherwise (including Liens of
or upon property, shares of capital stock or Indebtedness of a
corporation existing at the time such corporation becomes a
Subsidiary);
(c) Liens in favor of the Company or any Subsidiary;
(d) Liens in favor of the United States of America or any
state thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State
thereof or political entity affiliated therewith to secure partial,
progress, advance or other payments, or other obligations, pursuant to
any contract or statute or to secure any Indebtedness incurred for the
purpose of financing all or any part of the cost of acquiring,
constructing or improving the property subject to such Liens (including
Liens incurred in connection with pollution control, industrial revenue
or similar financings);
(e) Liens on any property created, assumed or otherwise
brought into existence in contemplation of the sale or other
disposition of the underlying property, whether directly or indirectly,
by way of share disposition or otherwise; provided that 180 days from
the creation of such Liens the Company must have disposed of such
property and any Indebtedness secured by such Liens shall be without
recourse to the Company or any Subsidiary;
(f) Liens imposed by law, such as mechanics', workmen's,
repairmen's, materialmen's, carriers', warehousemen's, vendors' or
other similar liens arising in the ordinary course of business, or
governmental (federal, state or municipal) liens arising out of
contracts for the sale of products or services by the Company or any
Subsidiary, or deposits or pledges to obtain the release of any of the
foregoing;
(g) Liens arising out of pledges or deposits under workmen's
compensation laws or similar legislation and Liens of judgments
thereunder which are not currently dischargeable, or good faith
deposits in connection with bids, tenders, contracts (other than for
the payment of money) or leases to which the Company or any Subsidiary
is a party, or deposits to secure public or statutory obligations of
the Company or any Subsidiary, or deposits in connection with obtaining
or maintaining self-insurance or to obtain the benefits of any law,
regulation or arrangement pertaining to unemployment insurance, old age
pensions, social security or similar matters, or deposits of cash or
obligations of the United States of America to secure surety, appeal or
customs bonds to which the Company or any Subsidiary is a party, or
deposits in litigation or other proceedings such as, but not limited
to, interpleader proceedings;
(h) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against
the Company or any Subsidiary with respect to which the Company or such
Subsidiary is in good faith prosecuting an appeal or proceedings for
review; or Liens incurred by the Company or any Subsidiary for the
purpose of obtaining a stay or discharge in the course of any
litigation or other proceeding to which the Company or such Subsidiary
is a party;
(i) Liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings;
(j) Liens consisting of easements, rights-of-way, zoning
restrictions, restrictions on the use of real property, and defects and
irregularities in the title thereto, landlords' liens and other similar
liens and encumbrances none of which interferes materially with the use
of the property covered thereby in the ordinary course of the business
of the Company or such Subsidiary and which do not, in the opinion of
the Company, materially detract from the value of such properties; and
(k) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Lien referred to in the foregoing clauses (a), (b), or (e) to (j),
inclusive; provided that (i) such extension, renewal or replacement
Lien shall be limited to all or a part of the same property, shares of
stock or Indebtedness that secured the Lien extended, renewed or
replaced (plus improvements on such property) and (ii) the amount of
Indebtedness secured by such Lien at such time is not increased.
Notwithstanding the foregoing, the Company and its
Subsidiaries, or any of them, may incur, issue, assume, guarantee or permit to
exist Indebtedness secured by Liens without equally and ratably securing the
Securities of each series then Outstanding, provided, that at the time of such
incurrence, issuance, assumption or guarantee of Indebtedness, after giving
effect thereto and to the retirement of any Indebtedness of the Company or of
any Subsidiary which is concurrently being retired, the sum of (i) the aggregate
amount of all outstanding Indebtedness of the Company and all the Subsidiaries
secured by Liens which could not have been incurred, issued, assumed or
guaranteed by the Company or a Subsidiary without equally or ratably securing
the Securities of each series then Outstanding, except for the provisions of
this paragraph, plus (ii) the Attributable Value of Sale and Leaseback
Transactions entered into pursuant to the penultimate paragraph of Section
10.11, does not at such time exceed the greater of 10% of the Net Tangible
Assets or 10% of the Consolidated Capitalization of the Company.
Section 10.11 Restrictions on Sale and Leaseback Transactions.
To the extent made applicable to the Securities of a particular series, the
Company will not itself, and will not permit any Subsidiary to, enter into any
arrangement with any Person, providing for the leasing by the Company or a
Subsidiary for a period, including renewals, in excess of three years of any
Property which have been or are to be sold or transferred by the Company or any
Subsidiary to such Person (herein referred to as a "Sale and Leaseback
Transaction") unless either:
(a) The Company or such Subsidiary would, at the time of
entering into such arrangement, be entitled, without equally and
ratably securing the Securities of each series then Outstanding, to
incur, issue, assume or guarantee Indebtedness secured by a Lien on
such property, pursuant to paragraphs (a) to (k), inclusive, of Section
10.10; or
(b) the Company, within 180 days after the sale or transfer
shall have been made by the Company or by a Subsidiary, applies an
amount equal to the greater of (i) the net proceeds of the sale of
Property sold and leased back pursuant to such arrangement or (ii) the
fair market value of the Property so sold and leased back at the time
of entering into such arrangement (as determined by any two Officers)
to the retirement of Funded Indebtedness of the Company; provided, that
the amount to be applied to the retirement of Funded Indebtedness of
the Company shall be reduced by (i) the principal amount of any
Securities delivered within 120 days after such sale to the Trustee for
retirement and cancellation, and (ii) the principal amount of Funded
Indebtedness, other than Securities, voluntarily retired by the Company
within 120 days after such sale.
Notwithstanding the foregoing, the Company and its
Subsidiaries, or any of them, may enter into a Sale and Leaseback Transaction
which would otherwise be prohibited by this Section 10.11, provided, that at the
time of such transaction, after giving effect thereto, the sum of (i) the
aggregate amount of the Attributable Value in respect of all Sale and Leaseback
Transactions existing at such time which could not have been entered into except
for the provisions of this paragraph plus (ii) the aggregate amount of
outstanding Indebtedness secured by Xxxxx in reliance on the last paragraph of
Section 10.10 does not at such time exceed the greater of 10% of the Net
Tangible Assets or 10% of the Consolidated Capitalization of the Company.
A Sale and Leaseback Transaction shall not be deemed to result
in the creation of a Lien.
Section 10.12 Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all applicable laws, rules,
regulations and orders of, and all applicable restrictions imposed by any
federal, state or local governmental authority in respect of the conduct of its
business and the ownership of its properties, except to the extent that any
non-compliance therewith would not have a material adverse effect.
The Company will, and will cause each of its Subsidiaries to seek and
maintain such governmental licenses, permits and approvals as are reasonably
required to conduct the business engaged in by the Company or such Subsidiary
and the failure of which to seek or maintain would not have a material adverse
effect.
Section 10.13 Payment of Taxes and Claims. The Company will,
and will cause each of its Subsidiaries to, pay and discharge when due all taxes
and claims imposed on it or on its income or profits or on any of its
properties, except such taxes or portions thereof that are being contested in
good faith in appropriate proceedings and for which appropriate reserves have
been established in accordance with generally accepted accounting principles or
the failure of which to pay and discharge would not have a material adverse
effect.
ARTICLE 11
Redemption of Securities
Section 11.1 Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.1 for such Securities) in accordance with this Article 11.
Section 11.2 Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by a Company
Order. In case of any redemption at the election of the Company of less than all
the Securities of any series (including any such redemption affecting only a
single Security), the Company shall, at least 45 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 11.3 Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any Security of
such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 11.4 Notice of Redemption. Notice of redemption shall
be given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at the Holder's address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, and that interest, if
any, thereon shall cease to accrue from and after said date;
(e) the place where such Securities are to be surrendered for
payment of the Redemption Price, which shall be the office or agency of
the Company in the Place of Payment;
(f) if applicable, that the redemption is on account of a
sinking or purchase fund, or other analogous obligation; and
(g) the "CUSIP" number, if any.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.
Section 11.5 Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
Section 11.6 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, (premium, if any) and accrued interest and from and after
such date (unless the Company shall default in the payment of the Redemption
Price (premium, if any) and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance
with such notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 3.1, installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
If any Security called for redemption is not so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7 Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or the Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Xxxxxx, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, however, that if a Global Security is so
surrendered, such new Security so issued shall be a new Global Security in a
denomination equal to the unredeemed portion of the principal of the Global
Security so surrendered.
ARTICLE 12
Sinking Funds
Section 12.1 Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of any series except as otherwise specified as contemplated by Section 3.1 for
such Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities 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 such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 12.2.
Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
Section 12.2 Satisfaction of Sinking Fund Payments with
Securities. The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 12.3 Redemption of Securities for Sinking Fund. Not
less than 35 days prior to each sinking fund payment date for any Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
date and the amount of the next ensuing sinking fund payment for such Securities
pursuant to the terms of such Securities, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if any, which is to
be satisfied by delivering and crediting Securities pursuant to Section 12.2 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 32 days prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.3 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 11.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.6 and 11.7.
ARTICLE 13
Defeasance and Covenant Defeasance
Section 13.1 Company's Right with Respect to Defeasance or
Covenant Defeasance. The Company will have the right, at any time, to have
Section 13.2 or Section 13.3 applied to any Securities or any series of
Securities, as the case may be (other than Securities of a series designated
pursuant to Section 3.1 as not being defeasible pursuant to such Section 13.2 or
13.3), upon compliance with the conditions set forth below in this Article. Any
such request shall be evidenced by a Company Order or in another manner
specified as contemplated by Section 3.1 for such Securities.
Section 13.2 Defeasance and Discharge. Upon the Company's
exercise of its right to have this Section applied to any Securities or any
series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities as provided
in this Section on and after the date the conditions set forth in Section 13.4
are satisfied (hereinafter called "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by such Securities and to have satisfied all
its other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following
which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of such Securities to receive, solely from the trust fund
described in Section 13.4 and as more fully set forth in such Section, (i)
payments in respect of the principal of and any premium and interest on the
Outstanding Securities on the Stated Maturity of such principal or installment
of principal of and any premium or interest and (ii) the benefit of any
mandatory sinking fund payments applicable to the Securities on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and the Securities, (b) the Company's obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (d) this Article.
Subject to compliance with this Article, the Company may exercise its option to
have this Section applied to any Securities notwithstanding the prior exercise
of its option to have Section 13.3 applied to such Securities.
Section 13.3 Covenant Defeasance. Upon the Company's exercise
of its right to have this Section applied to any Securities or any series of
Securities, as the case may be, (a) the Company shall be released from its
obligations under Sections 10.10 and 10.11, and any covenants provided pursuant
to Section 3.1(k) relating to covenants of the Company with respect to a
particular series of Securities, Section 9.1(b) or 9.1(h) for the benefit of the
Holders of such Securities and (b) the occurrence of any event specified in
Sections 5.1(d) (with respect to Sections 10.10 and 10.11, and any such
covenants provided pursuant to Section 3.1(k) relating to covenants of the
Company with respect to a particular series of Securities, Section 9.1(b) or
9.1(h)), and 5.1(g) shall be deemed not to be or result in an Event of Default,
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 13.4 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 5.1(d)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.2 or
Section 13.3 to any Securities or any series of Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (1) money in an amount, or (2) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (3) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, (i) the principal of and any premium and each
installment of principal of and any premium and interest on the
Outstanding Securities on the respective Stated Maturities, and (ii)
any mandatory sinking fund payments applicable to the Securities on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and such Securities.
(b) In the event of an election to have Section 13.2 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (1) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (2) since the
date of this instrument, there has been a change in the applicable
federal income tax law, in either case (1) or (2) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to federal
income tax on the same amount, in the same manner and at the same times
as would be the case if such deposit, Defeasance and discharge were not
to occur.
(c) In the event of an election to have Section 13.3 apply to
any Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(d) Such provision would not cause any Outstanding Securities,
if then listed on any securities exchange, to be delisted as a result
of such deposit.
(e) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such Securities
shall have occurred and be continuing at the time of such deposit or,
with regard to any such event specified in Sections 5.1(e) and (f), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(h) Such Defeasance or Covenant Defeasance shall not result in
the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(i) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 13.5 Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 10.3, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section and Section 13.6, the Trustee and
any such other trustee are referred to collectively as the "Trustee") pursuant
to Section 13.4 in respect of any Securities shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law. All money deposited with the Trustee pursuant to this Section may be
invested by the Trustee in U.S. Government Obligations if the Company so
instructs pursuant to a Company Order.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 13.4 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
Section 13.6 Reinstatement. If the Trustee or the Paying Agent
is unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations under this Indenture and such Securities from which the Company
has been discharged or released pursuant to Section 13.2 or 13.3 shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust pursuant to Section
13.5 with respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
(Corporate Seal) TEXAS-NEW MEXICO POWER COMPANY
BY /s/ X.X. Xxxxxx
--------------------------
Name: X.X. Xxxxxx
Title: Senior Vice President &
Chief Financial Officer
Attest:
BY /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary
(SEAL) CHASE BANK OF TEXAS, N.A., TRUSTEE
BY /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
Attest:
BY /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On this 11th day of January, 1999, before me, Xxxxxx Xxxxxxxx, Notary
Public in and for the County and State aforesaid, personally appeared X. X.
Xxxxxx, to me personally known, and known to me to be the person whose name is
subscribed to the foregoing instrument and known to me to be Senior Vice
President of TEXAS-NEW MEXICO POWER COMPANY, a Texas corporation, who being by
me duly sworn, did say that he resides in Weatherford, Texas, that he is Senior
Vice President of said TEXAS-NEW MEXICO POWER COMPANY and that the seal affixed
to said instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by authority of
its Board of Directors; and said X. X. Xxxxxx acknowledged said instrument to be
the free act and deed of said corporation, and acknowledged to me that he
executed said instrument for the purposes and consideration therein expressed
and as the act of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office this
11th day of January, 1999.
/s/ Xxxxxx Xxxxxxxx
-----------------------
(NOTARIAL SEAL)
STATE OF TEXAS )
)
COUNTY OF DALLAS )
Before me, a Notary Public, on this day personally appeared Xxxx X. Xxxxx,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument and acknowledged to me that the same was the act of Chase
Bank of Texas, N.A., and that he has executed the same on behalf of said
corporation for the purposes and consideration therein expressed, and in the
capacity therein stated.
Given under my hand and seal of office this 8th day of January, 1999.
/s/ Xxxxxxxx X. Blue
------------------------
Notary Public in and for the State
of Texas
(PERSONALIZED SEAL)
EXHIBIT A
[If the Security is to be a Global Security, insert -- Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER
REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
TEXAS-NEW MEXICO POWER COMPANY
% ------ DUE
$-----------------
No.
CUSIP _________________
TEXAS-NEW MEXICO POWER COMPANY, a corporation duly organized
and existing under the laws of The State of Texas (herein called the "Company,"
which term includes any successor under the Indenture hereinafter referred to),
for value received, hereby promises to pay to or registered assigns, the
principal sum of $
on [if the Security is to bear interest prior to Maturity, insert -- , and to
pay interest thereon from , or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on and
in each year, commencing , at the rate per annum provided in
the title hereof, until the principal hereof is paid or made available for
payment [if applicable, insert -- , and, subject to the terms of the Indenture,
at the rate of % per annum on any overdue principal and premium and (to the
extent that the payment of such interest shall be legally enforceable) on any
overdue installment of interest, from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be payable on
demand]. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the or (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity,
insert --The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal [and any overdue
premium] of this Security shall bear interest at the rate of % per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such default in payment to the date payment of
such principal has been made or duly provided for. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on any
overdue principal [or premium] that is not so paid on demand shall bear interest
at the rate of % per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such demand
for payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and
interest[, if any,] on this Security will be made at the office or agency of the
Company maintained for that purpose in , in [such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts -- or state other currency]; [if this Security is not a
Global Security, insert -- provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
manually executed by or on behalf of the Trustee under the Indenture, this
Security shall not be entitled to any benefits under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, TEXAS-NEW MEXICO POWER COMPANY has caused
this Security to be duly executed.
Dated: TEXAS-NEW MEXICO POWER COMPANY
by
-------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Date: ,
as Trustee,
BY
Authorized Signatory
[REVERSE OF SECURITY]
This Security is one of the duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the Company
(hereinafter called the "Securities"), of the series hereinafter specified, all
issued or to be issued under and pursuant to the Indenture dated as of [ ], 1998
(hereinafter called the "Indenture"), duly executed and delivered by the Company
and [ ], as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and any other
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee and any agent of the Trustee, any Paying Agent, the
Company and the Holders of the Securities and of the terms upon which the
Securities are issued and are to be authenticated and delivered. This Security
is one of the series designated on the face hereof [if applicable, insert -- ,
limited in aggregate principal amount to $--------. By the terms of the
Indenture, additional Securities [if applicable, insert -- of this series and]
of other separate series, which may vary as to date, amount, Stated Maturity,
interest rate or method of calculating the interest rate and in other respects
as therein provided, may be issued in an unlimited amount.]
[If applicable, insert -- This security is not subject to
redemption prior to the Stated Maturity.] [If applicable, insert --The
Securities of this series are subject to redemption upon not less than 30 or
more than 60 days' notice by mail to the Holders of such Securities at their
addresses in the Security Register for such series, [if applicable, insert --(1)
on in any year commencing with the year and ending with the year through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [on or after , 19 ], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before , %, and if redeemed] during the
12-month period beginning , of the years indicated:
Redemption Redemption
Year Price Year Price
-----------------------------------------------------------------------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [if applicable, insert --(whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert --The Securities of this series are
subject to redemption upon not less than 30 or more than 60 days' notice by mail
to the Holders of such Securities at their addresses in the Security Register
for such series, (1) on
in any year commencing with the year and ending with the year through operation
of the sinking fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [if applicable, insert
-- on or after ], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below:
If redeemed during the 12-month period beginning ---- of the years
indicated:
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
--------------------------------------------------------------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Company may not, prior to , redeem any Securities of this series as
contemplated by [Clause (2) of] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[If applicable, insert -- The sinking fund for this series
provides for the redemption on in each year beginning with the year and
ending with the year of [not less than] [("mandatory sinking fund") and, at
the option of the Company, not more than ] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise
required to be made in the order in which they become due.]]
[If the Security is subject to redemption of any kind, insert
-- In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance of (a) the
entire indebtedness of this Security and (b) certain restrictive covenants
upon compliance by the Company with certain conditions set forth therein.
[If the Security is not an Original Issue Discount Security,
insert --If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security,
insert --If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of
this series (the "Acceleration Amount") may be declared due and payable in the
manner and with the effect provided in the Indenture. Such amount shall be
equal to -- insert formula for determining amount. Upon payment (i) of the
Acceleration Amount so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if
any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as a class). The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
[If the Security is an Original Issue Discount Security, -- In
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Indenture or whether a quorum
is present at a meeting of Holders of Securities, the principal amount of any
Original Issue Discount Security that shall be deemed to be Outstanding shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon the acceleration of the Maturity thereof.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of (and premium, if any) and interest, if any, on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.