Exhibit 4.2
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UAL CORPORATION, Issuer
to
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
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INDENTURE
Dated as of December 20, 1996
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Providing for Issuance of
Junior Subordinated Debt Securities in Series
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TABLE OF CONTENTS
Page
ARTICLE 1 - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION 1
1.1. DEFINITIONS 1
1.2. COMPLIANCE CERTIFICATES AND OPINIONS 14
1.3. FORM OF DOCUMENTS DELIVERED TO TRUSTEE 14
1.4. ACTS OF HOLDERS 15
1.5. NOTICES, ETC., TO TRUSTEE AND COMPANY 17
1.6. NOTICE TO HOLDERS; WAIVER 17
1.7. HEADINGS AND TABLE OF CONTENTS 18
1.8. SUCCESSORS AND ASSIGNS 18
1.9. SEPARABILITY 18
1.10. BENEFITS OF INDENTURE 19
1.11. GOVERNING LAW 19
1.12. LEGAL HOLIDAYS 19
1.13. TRUSTEE TO ESTABLISH RECORD DATES 19
1.14. NO RECOURSE AGAINST OTHERS 19
ARTICLE 2 - SECURITY FORMS 20
2.1. FORMS GENERALLY 20
2.2. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION 21
2.3. SECURITIES IN GLOBAL FORM 21
2.4. FORM OF LEGEND FOR SECURITIES IN GLOBAL FORM 22
ARTICLE 3 - THE SECURITIES 22
3.1. AMOUNT UNLIMITED; ISSUABLE IN SERIES 22
3.2. DENOMINATIONS 27
3.3. EXECUTION, AUTHENTICATION, DELIVERY AND DATING 27
3.4. TEMPORARY SECURITIES 31
3.5. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE 32
3.6. REPLACEMENT SECURITIES 36
3.7. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED 37
3.8. PERSONS DEEMED OWNERS 39
3.9. CANCELLATION 40
3.10. COMPUTATION OF INTEREST 40
3.11. CURRENCY AND MANNER OF PAYMENT IN RESPECT OF
SECURITIES 40
3.12. APPOINTMENT AND RESIGNATION OF EXCHANGE
RATE AGENT 45
3.13. CUSIP NUMBERS 46
ARTICLE 4 - SATISFACTION, DISCHARGE AND DEFEASANCE 46
4.1. TERMINATION OF COMPANY'S OBLIGATIONS UNDER THE
INDENTURE 46
4.2. APPLICATION OF TRUST FUNDS 48
4.3. APPLICABILITY OF DEFEASANCE PROVISIONS;
COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE 48
4.4. DEFEASANCE AND DISCHARGE 49
4.5. COVENANT DEFEASANCE 49
4.6. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE 50
4.7. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST 52
4.8. TRANSFERS AND DISTRIBUTION AT COMPANY REQUEST 53
ARTICLE 5 - DEFAULTS AND REMEDIES 54
5.1. EVENTS OF DEFAULT 54
5.2. ACCELERATION; RESCISSION AND ANNULMENT 55
5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE 56
5.4. TRUSTEE MAY FILE PROOFS OF CLAIM 56
5.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES 56
5.6. DELAY OR OMISSION NOT WAIVER 56
5.7. WAIVER OF PAST DEFAULTS 57
5.8. CONTROL BY MAJORITY 57
5.9. LIMITATION ON SUITS BY HOLDERS 57
5.10. RIGHTS OF HOLDERS TO RECEIVE PAYMENT 58
5.11. APPLICATION OF MONEY COLLECTED 58
5.12. RESTORATION OF RIGHTS AND REMEDIES 59
5.13. RIGHTS AND REMEDIES CUMULATIVE 59
5.14. UNDERTAKING FOR COSTS 59
5.15. ACTION RESPECTING SECURITIES HELD IN
UAL CORPORATION CAPITAL TRUST 60
ARTICLE 6 - THE TRUSTEE 60
6.1. CERTAIN DUTIES AND RESPONSIBILITIES 60
6.2. RIGHTS OF TRUSTEE 61
6.3. TRUSTEE MAY HOLD SECURITIES 63
6.4. MONEY HELD IN TRUST 63
6.5. TRUSTEE'S DISCLAIMER 63
6.6. NOTICE OF DEFAULTS 63
6.7. REPORTS BY TRUSTEE TO HOLDERS 63
6.8. SECURITYHOLDER LISTS 64
6.9. COMPENSATION AND INDEMNITY 64
6.10. REPLACEMENT OF TRUSTEE 65
6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR 67
6.12. ELIGIBILITY; DISQUALIFICATION 68
6.13. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS 68
6.14. APPOINTMENT OF AUTHENTICATING AGENT 69
6.15. TRUSTEE'S APPLICATION FOR INSTRUCTIONS
FROM THE COMPANY 70
ARTICLE 7 - CONSOLIDATION, MERGER OR SALE BY THE COMPANY 71
ARTICLE 8 - SUPPLEMENTAL INDENTURES 72
8.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS 72
8.2. SUPPLEMENTAL INDENTURES WITH CONSENT
OF HOLDERS 73
8.3. COMPLIANCE WITH TRUST INDENTURE ACT 75
8.4. EXECUTION OF SUPPLEMENTAL INDENTURES 75
8.5. EFFECT OF SUPPLEMENTAL INDENTURES 75
8.6. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES 75
ARTICLE 9 - COVENANTS 76
9.1. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST 76
9.2. MAINTENANCE OF OFFICE OR AGENCY 76
9.3. MONEY FOR SECURITIES TO BE HELD IN TRUST;
UNCLAIMED MONEY 78
9.4. CORPORATE EXISTENCE 79
9.5. INSURANCE 79
9.6. REPORTS BY THE COMPANY 79
9.7. ANNUAL REVIEW CERTIFICATE 80
9.8. LIMITATION ON DIVIDENDS AND CAPITAL STOCK
ACQUISITIONS 80
9.9. NOTICE OF DEFAULT 81
ARTICLE 10 - REDEMPTION 81
10.1. APPLICABILITY OF ARTICLE 81
10.2. ELECTION TO REDEEM; NOTICE TO TRUSTEE 81
10.3. SELECTION OF SECURITIES TO BE REDEEMED 82
10.4. NOTICE OF REDEMPTION 82
10.5. DEPOSIT OF REDEMPTION PRICE 83
10.6. SECURITIES PAYABLE ON REDEMPTION DATE 84
10.7. SECURITIES REDEEMED IN PART 85
ARTICLE 11 - SINKING FUNDS 85
11.1. APPLICABILITY OF ARTICLE 85
11.2. SATISFACTION OF SINKING FUND PAYMENTS
WITH SECURITIES 85
11.3. REDEMPTION OF SECURITIES FOR SINKING FUND 86
ARTICLE 12 - SUBORDINATION OF SECURITIES 86
12.1. SECURITIES SUBORDINATED TO SENIOR
INDEBTEDNESS 86
12.2. COMPANY NOT TO MAKE PAYMENTS WITH
RESPECT TO SECURITIES IN CERTAIN
CIRCUMSTANCES; LIMITATIONS ON
ACCELERATION OF SECURITIES 87
12.3. SECURITIES SUBORDINATED TO PRIOR
PAYMENT OF ALL SENIOR INDEBTEDNESS
ON DISSOLUTION, LIQUIDATION OR
REORGANIZATION OF THE COMPANY 89
12.4. HOLDERS TO BE SUBROGATED TO RIGHTS
OF HOLDERS OF SENIOR INDEBTEDNESS 91
12.5. OBLIGATION OF THE COMPANY UNCONDITIONAL 91
12.6. KNOWLEDGE OF TRUSTEE 92
12.7. APPLICATION BY TRUSTEE OF MONEYS
DEPOSITED WITH IT 93
12.8. SUBORDINATION RIGHTS NOT IMPAIRED
BY ACTS OR OMISSIONS OF COMPANY OR
HOLDERS OF SENIOR INDEBTEDNESS 93
12.9. HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES 94
12.10. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS 94
12.11. ARTICLE 12 NOT TO PREVENT EVENTS OF DEFAULT 94
12.12. PAYING AGENTS OTHER THAN THE TRUSTEE 94
12.13. TRUSTEE'S COMPENSATION NOT PREJUDICED 95
12.14. TRUST MONEYS NOT SUBORDINATED 95
12.15. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE
OF LIQUIDATING AGENT 95
12.16. TRUSTEE NOT FIDUCIARY FOR HOLDERS OR
SENIOR INDEBTEDNESS OF THE COMPANY 95
Reconciliation and tie between Indenture dated as of December 20,
1996 and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Indenture
of 1939 Section Section
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310 (a)(1) 6.12
(a)(2) 6.12
(a)(3) TIA
(a)(4) Not applicable
(a)(5) TIA
(b) 6.10; 6.12;
TIA
311 (a) TIA
(b) TIA
312 (a) 6.8
(b) TIA
(c) TIA
313 (a) 6.7; TIA
(b) TIA
(c) TIA
(d) TIA
314 (a) 9.6; 9.7; TIA
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) TIA
(f) TIA
315 (a) TIA
(b) 6.6
(c) TIA
(d)(1) TIA
(d)(2) TIA
(d)(3) TIA
(e) TIA
316 (a)(last sentence) 1.1
(a)(1)(A) 5.2; 5.8
(a)(1)(B) 5.7
(b) 5.9; 5.10
(c) TIA
317 (a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318 (a) 1.11
(b) TIA
(c) 1.11; TIA
This reconciliation and tie section does not constitute part of
the Indenture.
INDENTURE, dated as of December 20, 1996, among UAL
CORPORATION, a Delaware corporation (the "Company"), as issuer, and
THE FIRST NATIONAL BANK OF CHICAGO, a national banking association, as
Trustee (the "Trustee").
Recitals
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The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
unsecured junior subordinated debentures, notes or other evidences of
indebtedness ("Securities") to be issued in one or more series as
herein provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the Holders of
the Securities:
ARTICLE 1
Definitions and Other Provisions
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of General Application
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Section 1.1. Definitions. (a) For all purposes of this
Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles; and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Affiliate" of any specified Person means any Person
directly or indirectly controlling or controlled by, or under direct
or indirect common control with, such specified Person.
For 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.
"Agent" means any Paying Agent or Registrar.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 6.14.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of publication or
in the English language, customarily published on each Business Day
whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is
used or in the financial community of such place. Whenever successive
publications in an Authorized Newspaper are required hereunder they
may be made (unless otherwise expressly provided herein) on any
Business Day and in the same or different Authorized Newspapers.
"Bearer Security" means any Security in the form (to the
extent applicable thereto) established pursuant to Section 2.1 which
is payable to bearer.
"Board" or "Board of Directors" means the Board of Directors
of the Company, the Executive Committee or any other duly authorized
committee thereof.
"Board Resolution" means a copy of a resolution of the Board
of Directors, certified by the Corporate Secretary or an Assistant
Secretary of the Company, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this Indenture
or in the Securities, means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or particular location are
authorized or obligated by law or executive order to close.
"Capital Lease" means any lease obligation of a person
incurred with respect to real property or equipment acquired or leased
by such person and used in its business that is required to be
recorded on its balance sheet as a capitalized lease in
accordance with generally accepted accounting principles consistently
applied as in effect on the date hereof.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of this
Indenture 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.
"Common Securities" shall mean the common undivided
beneficial interests in the assets of the applicable UAL Corporation
Capital Trust.
"Company" means the Person named as the Company in the first
paragraph of this Indenture until one or more successor corporations
shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter means such successors.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by the
Chairman of the Board, the President, any Executive Vice President or
any Senior Vice President, signing alone, by any Vice President
signing together with the Treasurer, any Assistant Treasurer, the
Corporate Secretary or any Assistant Secretary of the Company, or,
with respect to Sections 3.3, 3.4, 3.5 and 6.1, any other employee of
the Company named in an Officers' Certificate delivered to the
Trustee.
"Conversion Event" means the cessation of use of (i) a
Foreign Currency both by the government of the country which issued
such currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within
the European Communities or (iii) any currency unit other than the ECU
for the purposes for which it was established.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution
of this Indenture is located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate trust Administration,
except that, with respect to presentation of the Securities for
payment or registration of transfers or exchanges and the location of
the register, such term means the office or agency of the Trustee at
which at any particular time its corporate agency business shall be
conducted, which at the date of original execution of this Indenture
is located as c/o First Chicago Trust Company of Xxx Xxxx, 00 Xxxx
Xxxxxx-0xx Floor-Window 2, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Declaration of Trust" shall mean the Declaration of Trust
of the UAL Corporation Capital Trust, if any, specified in the
applicable Board Resolution or supplemental indenture establishing a
particular series of Securities pursuant to Section 3.01 hereof.
"Default" means any event which is, or after notice or
passage of time, or both, would be, an Event of Default.
"Depositary", when used with respect to the Securities of or
within any series issuable or issued in whole or in part in global
form, means the Person designated as Depositary by the Company
pursuant to Section 3.1 until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter shall mean or include each Person which is then a
Depositary hereunder, and if at any time there is more than one such
Person, shall be a collective reference to such Persons.
"Dollar" means the coin or currency of the United States as
at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European Communities.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
"European Monetary System" means the European Monetary
System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
"Exchange Rate Agent", when used with respect to Securities
of or within any series, means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, a New York Clearing
House bank designated pursuant to Section 3.1 or Section 3.12.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the
applicable bid quotation and (ii) the Dollar or Foreign Currency
amounts of principal (and premium, if any) and interest, if any (on an
aggregate basis and on the basis of a Security having the lowest
denomination principal amount in the relevant currency or currency
unit), payable with respect to a Security of any series on the basis
of such Market Exchange Rate or the applicable bid quotation, signed
by the Treasurer, any Vice President or any Assistant Treasurer of the
Company.
"Flight Equipment" means:
(a) aircraft of all types and classes used in
transportation and incidental services, together with all
aircraft instruments, appurtenances parts and fixtures
comprising such aircraft;
(b) aircraft engines of all types and classes used in
transportation and incidental services, together with all
accessories, appurtenances, parts and fixtures comprising
such aircraft engines;
(c) aircraft communication equipment of all types and
classes used in transportation and incidental services,
including radio, radar, radiophone and other aircraft
communication apparatus, together with all accessories,
appurtenances, parts and fixtures comprising such aircraft
communication equipment;
(d) miscellaneous flight equipment of all types and
classes (including miscellaneous crew flight equipment) used
in transportation and incidental services; and
(e) spare parts, accessories and assemblies held for
use in or repair of the items described in (a) through (d)
above.
"Foreign Currency" means any currency issued by the
government of one or more countries other than the United States or by
any recognized confederation or association of such governments.
"Government Obligations" means securities which are (i)
direct obligations of the United States or, if specified as
contemplated by Section 3.1, the government which issued the currency
in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States or, if specified as
contemplated by Section 3.1, such government which issued the foreign
currency in which the Securities of such series are payable, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation
or a specific payment of interest on or principal of any such Government
Obligation held by such custodian for the account of the holder of a
depositary 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 depositary receipt from any amount
received by the custodian in respect of the Government Obligation
evidenced by such depositary receipt.
"Holder" means, with respect to a Bearer Security or coupon,
a bearer thereof and, with respect to a Registered Security, a person
in whose name a Security is registered on the Register.
"Indebtedness" of any Person means, without duplication, the
principal of, and premium, if any, and accrued and unpaid interest
(including post-petition interest) on any obligation, whether
outstanding on the date hereof or thereafter created, incurred or
assumed, which is (i) indebtedness of such Person for money borrowed,
(ii) Indebtedness Guarantees by such Person of indebtedness for money
borrowed by any other Person, (iii) indebtedness evidenced by notes,
debentures, bonds or other instruments of indebtedness for payment of
which such Person is responsible or liable, (iv) obligations for the
reimbursement of any obligor on any letter of credit, bankers'
acceptance or similar credit transaction, (v) obligations of such
Person under Capital Leases and Flight Equipment leases (the amount of
the Company's obligation under such Flight Equipment leases to be
computed in accordance with Statement of Financial Accounting
Standards No. 13 as if such Flight Equipment leases were Capital
Leases), (vi) obligations (net of counterparty payments) under
interest rate and currency swaps, caps, collars, options, forward or
spot contracts or similar arrangements or with respect to foreign
currency xxxxxx, and (vii) commitment and other bank financing fees
under contractual obligations associated with bank debt; provided,
however, that Indebtedness shall not include amounts owed to trade
creditors in the ordinary course of business.
"Indebtedness Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other Person
and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment or performance thereof (or payment of
damages in the event of nonperformance) or to protect such obligee
against loss in respect thereof (in whole or in part); provided,
however, that the terms Indebtedness Guarantee shall not include
endorsements for collection or deposit in the ordinary course of
business. The term "Indebtedness Guarantee" used as a verb has a
corresponding meaning.
"Indenture" means this Indenture as originally executed or
as amended or supplemented from time to time and shall include the
forms and terms (but not defined terms established in an Officers'
Certificate or a Board Resolution) of particular series of Securities
established as contemplated by Section 2.1 and Section 3.1.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated Maturity
may be more or less than the principal face amount thereof at original
issuance.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
maturity, means interest payable after maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on
such Security.
"Market Exchange Rate" means, unless otherwise specified
with respect to any Securities pursuant to Section 3.1, (i) for any
conversion involving a currency unit on the one hand and Dollars or
any Foreign Currency on the other, the exchange rate between the
relevant currency unit and Dollars or such Foreign Currency calculated
by the method specified pursuant to Section 3.1 for the Securities of
the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be purchased
with the Foreign Currency from which conversion is being made from
major banks located in New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified
with respect to any Securities pursuant to Section 3.1, in the event
of the unavailability of any of the exchange rates provided for in the
foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall
use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in
New York City, London or other principal market for such currency or
currency unit in question (which may include any such bank acting as
Trustee under this Indenture), or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market
for dealing in any currency or currency unit by reason of foreign
exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident
issuer of securities designated in such currency or currency unit
would purchase such currency or currency unit in order to make
payments in respect of such securities.
"Maturity", when used with respect to any Security means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officer" means the Chairman of the Board of Directors, the
President, any Executive Vice President, any Senior Vice President,
any Vice President or the Corporate Secretary of the Company.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, any Executive Vice President or
any Senior Vice President of the Company, signing alone, or by any
Vice President signing together with the Corporate Secretary, any
Assistant Secretary, the Treasurer, or any Assistant Treasurer of the
Company.
"Opinion of Counsel" means a written opinion of legal
counsel, who may be (a) the senior attorney employed by the Company,
(b) any other Officer who is an attorney, (c) Xxxxx, Xxxxx & Xxxxx or
(d) other counsel designated by the Company and who shall be
acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the stated principal
amount thereof to be due and payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, 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 and any coupons appertaining
thereto provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provisions therefor satisfactory to the Trustee have
been made;
(iii) Securities, except to the extent provided in Sections
4.4 and 4.5, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article 4;
and
(iv) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, or whether sufficient funds are available for
redemption or for any other purpose, and for the purpose of making the
calculations required by section 313 of the Trust Indenture Act, (w)
the principal amount of any Original Issue Discount Securities that
may be counted in making such determination or calculation and that
shall be deemed to be Outstanding for such purpose shall be equal to
the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination,
upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.2, (x) the principal amount of any Security denominated in a
Foreign Currency that may be counted in making such determination
or calculation and that shall be deemed Outstanding for such purpose
shall be equal to the Dollar equivalent, determined as of
the date such Security is originally issued by the Company as set
forth in an Exchange Rate Officer's Certificate delivered to the
Trustee, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (w) above) of
such Security, (y) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that
shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to
Section 3.1, and (z) 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
making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest, if any, on any
Securities on behalf of the Company.
"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 thereon, if any,
the Stated Maturity or Stated Maturities thereof, the original issue
date or dates thereof, the redemption provisions, if any, with
respect thereto, and any other terms specified as contemplated by
Section 3.1 with respect thereto, are to be determined by the Company
upon the issuance of such Securities.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities
of or within any series, means the place or places where, subject to
the provisions of Section 9.2, the principal of, premium, if any, and
interest, if any, on such Securities are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost
or stolen Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security.
"Preferred Securities" means the preferred undivided
beneficial interests in the assets of the applicable UAL Corporation
Capital Trust.
"Redeemable Stock" means, with respect to any person, any
equity security of such person that by its terms or otherwise (i) is
required to be redeemed prior to the maturity of any of the
Securities, or is redeemable at the option of the holder thereof at
any time prior to the maturity of any of the Securities, and (ii)
creates a financial obligation on such person if any required or
optional redemption obligation is not timely satisfied.
"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, in whole or in part, means the price at which it is to
be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form (to the
extent applicable thereto) established pursuant to Section 2.1 which
is registered as to principal and interest in the Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of or within any
series means the date specified for that purpose as contemplated by
Section 3.1.
"Responsible Officer", when used with respect to the
Trustee, shall mean the chairman or any vice chairman of the board of
directors, the chairman or any vice chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any senior vice president, any vice
president, any assistant vice president, the secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer, the controller, any assistant
controller, or any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time
shall be such officers, respectively, and also means, with respect to
a particular corporate trust matter, any other officer to whom such
corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any
Security or Securities of the Company issued, authenticated and
delivered under this Indenture.
"Security Exchange," when used with respect to the
Securities of any series which are held as trust assets of a UAL
Corporation Capital Trust pursuant to the Declaration of Trust of such
UAL Corporation Capital Trust, shall mean the distribution of the
Securities of such series by such UAL Corporation Capital Trust in
exchange for the Preferred Securities and Common Securities of such
UAL Corporation Capital Trust in dissolution of such UAL Corporation
Capital Trust pursuant to the Declaration of Trust of such UAL
Corporation Capital Trust.
"Senior Indebtedness of the Company" means all Indebtedness
of the Company (other than the Securities), unless such Indebtedness,
by its terms or the terms of the instrument creating or evidencing it,
is subordinate in right of payment to or pari passu with the
Securities, and, in particular, the Securities shall rank pari passu
with all other debt securities and guarantees in respect of those debt
securities issued to any other UAL Corporation Capital Trust or any
indebtedness of the Company to a Subsidiary.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any issue 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, if any, thereon,
means the date specified in such Security or in a coupon representing
such installment of interest as the fixed date on which the principal
of such Security or such installment of principal or interest, if any,
is due and payable.
"Subsidiary" means any corporation of which the Company at
the time owns or controls, directly or indirectly, more than 50% of
the shares of outstanding stock having general voting power under
ordinary circumstances to elect a majority of the Board of Directors
of such corporation (irrespective of whether or not at the time stock
of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency).
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in effect on the date of this Indenture, except as
provided in Section 8.3.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor Trustee replaces it
pursuant to the applicable provisions of this Indenture, and
thereafter means such successor Trustee and if, at any time, there is
more than one Trustee, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"UAL Corporation Capital Trust" shall mean any statutory
business trust created under the laws of the State of Delaware
specified in or pursuant to the applicable Board Resolution or
supplemental indenture establishing a particular series of Securities
pursuant to Section 3.1 hereof.
"United States" means, unless otherwise specified with
respect to the Securities of any series as contemplated by
Section 3.1, the United States of America (including the States and
the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Person" means, unless otherwise specified with respect
to the Securities of any series as contemplated by Section 3.1, a
citizen, national or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws
of the United States or any political subdivision thereof, or an
estate or trust the income of which is subject to United States
federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, calculated
by the Company at the time of issuance of a series of Securities or,
if applicable, at the most recent determination of interest on such
series, in accordance with accepted financial practice.
(b) The following terms shall have the meanings specified
in the Sections referred to opposite such term below:
Term Section
"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Component Currency" 3.11(d)
"Conversion Date" 3.11(d)
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"Election Date" 3.11(h)
"Event of Default" 5.1
"Register" 3.5
"Registrar" 3.5
"Valuation Date" 3.7(c)
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 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 an Opinion of
Counsel stating that in the opinion of such counsel 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 with
a condition or covenant provided for in this Indenture (other than
pursuant to Sections 2.3, 3.3 and 9.7) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he or she has made such examination or investigation
as is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant 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 other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an Officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such Officer
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters
upon which his or her certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that
the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or
opinion or representations as 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 by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly
appointed in writing. 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 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
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him or her the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed by
any trust company, bank, broker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (i) another such
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, (ii) such Bearer Security is
produced to the Trustee by some other Person, (iii) such Bearer
Security is surrendered in exchange for a Registered Security or (iv)
such Bearer Security is no longer outstanding. The ownership of
Bearer Securities may also be proved in any other reasonable manner
which the Trustee deems sufficient.
(d) The ownership of Registered Securities shall be proved
by the Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Security.
(f) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to an
Officers' Certificate delivered to the Trustee, fix in advance a
record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or
other Act, 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 Act may be given before or
after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions
of clause (a) of this Section 1.4 not later than six months after the
record date.
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,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at UAL Corporation, X.X.
Xxx 00000, Xxxxxxx, Xxxxxxxx 00000, Attention: Treasurer or at
any other address previously furnished in writing to the Trustee
by the Company.
Section 1.6. Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, (i) if any of
the Securities affected by such event are Registered Securities, such
notice to the Holders thereof shall be sufficiently given (unless
otherwise herein expressly provided or otherwise agreed to by a
Holder) if in writing and mailed, first-class postage prepaid, to each
such Holder affected by such event, at his address as it appears in
the Register, within the time prescribed for the giving of such notice
and (ii) if any of the Securities affected by such event are Bearer
Securities, notice to the Holders thereof shall be sufficiently given
(unless otherwise herein or in the terms of such Bearer Securities
expressly provided) if published once in an Authorized Newspaper in
New York, New York, and in such other city or cities, if any, as may
be specified as contemplated by Section 3.1(5).
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 of Registered Securities or
the sufficiency of any notice to Holders of Bearer Securities given as
provided herein. In any case where notice is given to Holders by
publication, neither the failure to publish such notice, nor any
defect in any notice so published, shall affect the sufficiency of
such notice with respect to other Holders of Bearer Securities or the
sufficiency of any notice to Holders of Registered Securities given
as provided herein. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such
notice as provided above, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder. If it is impossible or, in the opinion
of the Trustee, impracticable to give any notice by publication in the
manner herein required, then such publication in lieu thereof as shall
be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall be
in the English language, except that any published notice may be in an
official language of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be
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.
Section 1.7. 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 1.8. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors
and assigns, whether so expressed or not.
Any act or proceeding that is required or permitted by any
provision of this Indenture and that is authorized or required to be
done or performed by any board, committee or officer of the Company
shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the
time be the successor or assign of the Company.
Section 1.9. Separability. In case any provision of this
Indenture or 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 1.10. Benefits of Indenture. Nothing in this
Indenture or in the Securities, expressed or implied, shall give to
any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness of the Company, and the
Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 1.11. Governing Law. THIS INDENTURE, THE
SECURITIES AND ANY COUPONS APPERTAINING THERETO SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. This Indenture is
subject to the Trust Indenture Act and if any provision hereof limits,
qualifies or conflicts with the Trust Indenture Act, the Trust
Indenture Act shall control.
Section 1.12. Legal Holidays. In any case where any
Interest Payment Date, Redemption Date, sinking fund payment date,
Stated Maturity or Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or any Security or coupon other than a provision in
the Securities of any series which specifically states that such
provision shall apply in lieu of this Section) payment of principal,
premium, if any, or interest, 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 such date; provided that no interest shall accrue on the
amount so payable for the period from and after such Interest Payment
Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
Section 1.13. Trustee to Establish Record Dates. The
Trustee shall fix a record date for the purpose of determining the
Holders entitled to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action
provided in this Indenture to be made, given or taken by Holders. If
such a record date is fixed, the Holders on such record date, and only
such Holders, shall be entitled to make, give or take such request,
demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record
date. No such request, demand, authorization, direction, notice,
consent, waiver or other action shall be valid or effective if made,
given or taken more than 90 days after such record date.
Section 1.14. No Recourse Against Others. No recourse for
the payment of the principal of, premium, if any, or interest, if any,
on the Securities, or for any claim based on the Securities or this
Indenture, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or any indenture supplemental
thereto or in any Security or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
officer or director, as such, past, present or future, of the Company or
of any successor corporation, either directly or through the Company or
any successor corporation, whether by virtue of any constitution, statute
or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance of a Security
by each Holder and as part of the consideration for the issue of such
Security, expressly waived and released.
ARTICLE 2
Security Forms
--------------
Section 2.1. Forms Generally. The Securities of each
series and the coupons, if any, to be attached thereto shall be in
substantially such form (including global form) as shall be
established by delivery to the Trustee of 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 the
rules of any securities exchange or as may, consistent herewith, be
determined by the Officers executing such Securities and coupons, if
any, as evidenced by their execution of the Securities and coupons, if
any. If temporary Securities of any series are issued as permitted by
Section 3.4, the form thereof also shall be established as provided in
the preceding sentence. If the forms of Securities and coupons, if
any, of any series are established by an Officers' Certificate, such
Officers' Certificate shall be 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.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest coupons attached.
The permanent Securities and coupons, if any, shall be
printed, lithographed or engraved or produced by any combination of
these methods or may be produced in any other manner, all as
determined by the officers executing such Securities and coupons, if
any, as evidenced by their execution of such Securities and coupons,
if any.
Section 2.2. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication shall be
in substantially the following form:
This is one of the Securities of a series issued under the
within-mentioned Indenture.
Dated: The First National Bank of Chicago,
as Trustee
By: ________________________
Authorized Signatory
Section 2.3. Securities in Global Form. If securities of
or within a series are issuable in whole or in part in temporary or
permanent global form, as specified as contemplated by Section 3.1,
then, notwithstanding clause (8) of Section 3.1(b) and the provisions
of Section 3.2, any such Security shall represent such of the
outstanding securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of
a Security in global form to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of
Outstanding Securities represented thereby, shall be made by the
Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to
the provisions of Section 3.3 and, if applicable, Section 3.4, the
Trustee shall deliver and redeliver any Security in global form in the
manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. Any instructions by the
Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with
Section 1.2 hereof and need not be accompanied by an Opinion of
Counsel.
The provisions of the last paragraph of Section 3.3 shall
apply to any Security in global form if such Security was never issued
and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need
not comply with Section 1.2 and need not be accompanied by an Opinion
of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last paragraph of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7,
unless otherwise specified as contemplated by Section 3.1, payment of
principal of, premium, if any, and interest, if any, on any Security
in permanent global form shall be made to the Person or Persons
specified therein.
Section 2.4. Form of Legend for Securities in Global Form.
Any Security in global form authenticated and delivered hereunder
shall bear a legend in substantially the following form, or such other
form as deemed necessary or desirable by the Company and specified in
a Company Order delivered to the Trustee:
This Security is in global form within the meaning of the
Indenture hereinafter referred to and is registered in the name
of a Depositary or a nominee of a Depositary. Unless and until
it is exchanged in whole or in part for Securities in
certificated form, this 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.
ARTICLE 3
The Securities
--------------
Section 3.1. Amount Unlimited; Issuable in Series. (a)
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued from time to time in one or more series.
(b) The following matters shall be established and (subject
to Section 3.3) set forth, or determined in the manner provided, in an
Officers' Certificate and a Board Resolution of the Company, or one or
more indentures supplemental hereto:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (which limit shall not pertain to (i)
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 8.6, or 10.7 and (ii)
any Securities which, pursuant to the last paragraph of Section
3.3, are deemed never to have been authenticated and delivered
hereunder);
(3) the date or dates on which the principal of the
Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such
rate or rates of interest, the date or dates from which such
interest shall accrue or the method by which such date or dates
shall be determined, the Interest Payment Dates on which any such
interest shall be payable and any provision for the extension or
deferral thereof and, with respect to Registered Securities, the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date;
(5) the place or places where, subject to the provisions of
Section 9.2, the principal of, premium, if any, and interest, if
any, on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices
at which, the currency or currencies (including currency units)
in which, and the other terms and conditions upon which,
Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than as provided in
Section 10.3, the manner in which the particular Securities of
such series (if less than all Securities of such series are to be
redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event
or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the other terms
and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and if other than
denominations of $5,000 and $100,000, if Bearer Securities, the
denominations in which Securities of the series shall be
issuable;
(9) if other than Dollars, the currency or currencies
(including currency units) in which the principal of, premium, if
any, and interest, if any, on the Securities of the series shall
be payable, or in which the Securities of the series shall be
denominated, the particular provisions applicable thereto in
accordance with, in addition to, or in lieu of the provisions of
Section 3.11, and whether the Securities of the series may be
satisfied and discharged other than as provided in Article 4;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made,
at the election of the Company or a Holder, in a currency or
currencies (including currency units) other than that in which
such Securities are denominated or designated to be payable, the
currency or currencies (including currency units) in which such
payments are to be made, the terms and conditions of such
payments and the manner in which the exchange rate with respect
to such payments shall be determined, the particular provisions
applicable thereto in accordance with, in addition to, or in lieu
of the provisions of Section 3.11, and whether the Securities of
the series may be satisfied and discharged other than as provided
in Article 4;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall
be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation,
on a currency or currencies (including currency units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by
which such amounts shall be determined;
(12) if other than the principal amount thereof, the portion
of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof
pursuant to Section 5.2 or the method by which such portion shall
be determined;
(13) if other than as provided in Section 3.7, the Person to
whom any interest on any Registered Security of the series shall
be payable, the manner in which, or the Person to whom, any
interest on any Bearer Securities of the series shall be payable,
and the extent to which, or the manner in which (including any
certification requirement and other terms and conditions under
which), any interest payable on a temporary or permanent global
Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 2.3 and Section 3.4, as
applicable;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default set forth in Section 5.1 or covenants of
the Company set forth in Article 9 pertaining to the Securities
of the series;
(16) under what circumstances, if any, the Company will pay
additional amounts on the Securities of that series held by a
Person who is not a U.S. Person in respect of taxes or similar
charges withheld or deducted and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
additional amounts (and the terms of any such option);
(17) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without
interest coupons), or both, and any restrictions applicable to
the offering, sale or delivery of Bearer Securities and, if other
than as provided in Section 3.5, the terms upon which Bearer
Securities of a series may be exchanged for Registered Securities
of the same series and vice versa;
(18) the date as of which any Bearer Securities of the
series and any temporary global Security representing outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
(19) the applicability, if any, to the Securities of or
within the series of Sections 4.4 and 4.5, or such other means of
defeasance or covenant defeasance as may be specified for the
Securities and coupons, if any, of such series, and whether, for
the purpose of such defeasance or covenant defeasance, the term
"Government Obligations" shall include obligations referred to in
the definition of such term which are not obligations of the
United States or an agency or instrumentality of the United
States;
(20) if other than the Trustee, the identity of the
Registrar and any Paying Agent;
(21) any terms which may be related to warrants issued by
the Company in connection with, or for the purchase of,
Securities of such series, including whether and under what
circumstances the Securities of any series may be used
toward the exercise price of any such warrants;
(22) the designation of the initial Exchange Rate Agent, if
any;
(23) whether Securities of the series shall be issued in
whole or in part in temporary or permanent global form and, if
so, (i) the initial Depositary for such global Securities and
(ii) if other than as provided in Section 3.4 or 3.5, as
applicable, whether and the circumstance under which beneficial
owners of interests in any Securities of the series in temporary
or permanent global form may exchange such interests for
Securities of such series and of like tenor of any authorized
form and denomination;
(24) whether Securities of the Series shall be convertible
into shares of common stock of the Company and the terms and
conditions upon which the Securities will be convertible,
including the conversion price, the conversion period and other
conversion provisions;
(25) if other than as provided in Article 12, the terms and
conditions under which the Securities will be subordinated to the
Senior Indebtedness of the Company; and
(26) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture), including
any terms which may be required by or advisable under United
States laws or regulations or advisable in connection with the
marketing of Securities of the series.
(c) All Securities of any one series and coupons, if any,
appertaining to any Bearer Securities of such series shall be
substantially identical except as to denomination and the rate or
rates of interest, if any, and Stated Maturity, and the date from
which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to this
Section 3.1 or in an indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series or
for the establishment of additional terms with respect to the
Securities of such series.
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to a Board Resolution, a copy of
such Board Resolution shall be certified by the Corporate Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Officers' Certificate of the Company,
setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action
taken pursuant thereto in connection with the issuance of any Securities
of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof. With respect to Securities of a
series subject to a Periodic Offering, such Board Resolutions or Officers'
Certificates may provide general terms 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 one or more of its agents
designated in the Officers' Certificate, in accordance with the
Company Order, as contemplated by the first proviso of the third
paragraph of Section 3.3.
(e) Each Security issued hereunder shall provide that the
Company and, by its acceptance of a Security or a beneficial interest
therein, the Holder of, and any Person that acquires a beneficial
interest in, such Security agree that for United States federal, state
and local tax purposes it is intended that such Security constitute
indebtedness.
Section 3.2. Denominations. Unless otherwise provided as
contemplated by Section 3.1, any Registered Securities of a series
shall be issuable in denominations of $1,000 and any integral multiple
thereof and any Bearer Securities of a series shall be issuable in
denominations of $5,000 and $100,000.
Section 3.3. Execution, Authentication, Delivery and
Dating. Securities shall be executed on behalf of the Company by its
Chairman or President and Chief Executive Officer and attested to by
the Secretary of the Company. The Company's seal shall be affixed to
the Securities or a facsimile of such seal shall be engraved, printed,
or otherwise reproduced on the Securities. The signatures of such
officers on the Securities may be manual or facsimile. The coupons,
if any, of Bearer Securities shall bear the facsimile signature of the
Chairman or President and Chief Executive Officer and shall be
attested by the Secretary of the Company.
Securities and coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of
the Company shall bind the Company notwithstanding that such
individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold
such offices at the date of such Securities.
At any time and from time to time, the Company may deliver
Securities and any coupons appertaining thereto of any series executed
by the Company to the Trustee for authentication,
together with a Company Order for the authentication and make
available for delivery such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities;
provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such
Securities from time to time in accordance with such other procedures
(including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as
may be specified by or pursuant to a Company Order delivered to the
Trustee prior to the time of the first authentication of Securities of
such series, as such form of Company Order may be revised from time to
time.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officers' Certificates as
permitted by Sections 2.1 and 3.1, in authenticating such Securities
and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive,
and (subject to section 315(a) through (d) of the Trust Indenture Act)
shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) that the forms and terms of such Securities and any
coupons have been established in conformity with the provisions
of this Indenture; and
(2) that such Securities together with any coupons
appertaining thereto, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to customary
exceptions;
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of Securities of such series and that
the Opinion of Counsel above may state:
(x) that the forms of such Securities have been,
and the terms of such Securities (when established in
accordance with such procedures as may be specified from
time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers'
Certificate pursuant to Section 3.1, as the case may be)
will have been, established in conformity with the provisions
of this Indenture; and
(y) that such Securities together with the
coupons, if any, appertaining thereto, when (1) executed by
the Company, (2) completed, authenticated and delivered by
the Trustee in accordance with this Indenture, and (3)
issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject
to customary exceptions.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 3.1 of this
Section, as applicable, at or prior to the time of the first
authentication of Securities of such series unless and until it
has received written notification that such opinion or other
documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject
to a Periodic Offering, the Trustee shall be entitled to assume
that the Company's instructions to authenticate and deliver such
Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the
Company.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officers' Certificates as
permitted by Sections 2.1 and 3.1, the Trustee shall have the right to
decline to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will adversely affect the
Trustee's own rights, duties or immunities under this Indenture or
otherwise in a manner which is not reasonably acceptable to the
Trustee. Notwithstanding the generality of the foregoing, the Trustee
will not be required to authenticate Securities denominated in a
Foreign Currency if the Trustee reasonably believes that it would be
unable to perform its duties with respect to such Securities.
Notwithstanding the provisions of Section 3.1 and of the two
preceding paragraphs, if all of the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 3.1 at or
prior to the time of the authentication of each Security of such
series if such Officers' Certificate is delivered at or prior to the
authentication upon original issuance of the first Security of such
series to be issued.
If the Company shall establish pursuant to Section 3.1 that
the Securities of a series are to be issued in whole or in part in
global form, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to
such series, authenticate and deliver one or more Securities in global
form that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of the Outstanding Securities
of such series to be represented by such Security or Securities in
global form, (ii) shall be registered, if a Registered Security, in
the name of the Depositary for such Security or Securities in global
form or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's
instruction.
Each Depositary designated pursuant to Section 3.1 for a
Registered Security in global form must, at the time of its
designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934
and any other applicable statute or regulation. The Trustee shall
have no responsibility to determine if the Depositary is so
registered. Each Depositary shall enter into an agreement with the
Trustee governing the respective duties and rights of such Depositary
and the Trustee with regard to Securities issued in global form.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security (including a Bearer Security
represented by a temporary global Security) shall be dated as of the
date specified as contemplated by Section 3.1.
No Security or coupon appertaining thereto shall be entitled
to any benefits under this Indenture or be valid or obligatory for any
purpose until such Security is authenticated by the manual signature
of one of the authorized signatories of the Trustee or an
Authenticating Agent. Such signature upon any Security shall be
conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered under this Indenture and is
entitled to the benefits of this Indenture. Except as permitted by
Section 3.6 or 3.7, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then
matured have been detached and canceled.
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 not 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 Company Order, the Trustee shall authenticate and
deliver temporary Securities of such series which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor and form, with or
without coupons, 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 conclusively evidenced by their execution
of such Securities and coupons, if any. In the case of Securities of
any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form,
each of which shall be exchanged in accordance with the provisions
thereof, if temporary Securities of any series are issued, the Company
will cause permanent Securities of such series to be prepared without
unreasonable delay. After preparation of such permanent Securities,
the temporary Securities shall be exchangeable for such permanent
Securities of like tenor upon surrender of the temporary Securities of
such series at the office or agency of the Company pursuant to
Section 9.2 in a Place of Payment for such series, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of permanent Securities of the same series of
authorized denominations and of like tenor; provided, however, that no
permanent Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that no permanent
Bearer Security shall be delivered in exchange for a temporary Bearer
Security unless the Trustee shall have received from the person
entitled to receive the definitive Bearer Security a certificate
substantially in the form approved in the Officers' Certificate
relating thereto and such delivery shall occur only outside the United
States. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this
Indenture as permanent Securities of such series except as otherwise
specified as contemplated by Section 3.1.
Section 3.5. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust
Office of the Trustee or in any office or agency to be maintained by
the Company in accordance with Section 9.2 in a Place of Payment a
register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of
transfers of Registered Securities. The Register shall be in written
form or any other form capable of being converted into written form
within a reasonable time. The Trustee is hereby appointed "Registrar"
for the purpose of registering Registered Securities and transfers of
Registered Securities as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency maintained
pursuant to Section 9.2 in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
Bearer Securities or any coupons appertaining thereto shall
be transferable by delivery.
At the option of the Holder, Registered Securities of any
series (except a Registered Security in global form) may be exchanged
for other Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount containing
identical terms and provisions, upon surrender of the Registered
Securities to be exchanged at such office or agency. Whenever any
Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled
to receive. Unless otherwise specified as contemplated by
Section 3.1, Bearer Securities may not be issued in exchange for
Registered Securities.
Unless otherwise specified as contemplated by Section 3.1,
at the option of the Holder, Bearer Securities of such series may be
exchanged for Registered Securities (if the Securities of such series
are issuable in registered form) or Bearer Securities (if Bearer
Securities of such series are issuable in more than one denomination
and such exchanges are permitted by such series) of the same series,
of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and
all matured coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the
face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless.
If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as
otherwise provided in Section 9.2, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States.
Notwithstanding the foregoing, in case any Bearer Security of any
series is surrendered at any such office or agency in exchange for a
Registered Security of the same series after the close of business at
such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related date for payment
of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed
date of payment, as the case may be (or, if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned
to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may
be, in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such
coupon, when due in accordance with the provisions of this Indenture.
Notwithstanding any other provision (other than the
provisions set forth in the seventh and eighth paragraphs of this
Section) of this Section, unless and until it is exchanged in whole or
in part for Securities in certificated form, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary
or any such nominee to a successor Depositary for such series or a
nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as
Depositary for the Securities of such series or if at
any time the Depositary for the Securities of such series shall no
longer be eligible under Section 3.3, the Company shall appoint a
successor Depositary with respect to the Securities of such series.
If a successor Depositary for the Securities of such series is not
appointed by the Company within 90 days after the issuer receives such
notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 3.1 shall no longer be effective with respect to
the Securities of such series and the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor,
shall authenticate and deliver Securities of such series of like tenor
in certificated form, in authorized denominations and in an aggregate
principal amount equal to the principal amount of the Security or
Securities of such series of like tenor in global form in exchange for
such Security or Securities in global form.
The Company may at any time in its sole discretion determine
that Securities of a series issued in global form shall no longer be
represented by such a Security or Securities in global form. In such
event the Company shall execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of certificated
Securities of such series of like tenor, shall authenticate and
deliver, Securities of such series of like tenor in certificated form,
in authorized denominations and in an aggregate principal amount equal
to the principal amount of the Security or Securities of such series
of like tenor in global form in exchange for such Security or
Securities in global form.
If specified by the Company pursuant to Section 3.1 with
respect to a series of Securities, the Depositary for such series may
surrender a Security in global form of such series in exchange in
whole or in part for Securities of such series in certificated form on
such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to each Person specified by such Depositary a new
certificated Security or Securities of the same series of like
tenor, 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 Security in global form; and
(ii) to such Depositary a new Security in global form of
like tenor in a denomination equal to the difference, if any,
between the principal amount of the surrendered Security in
global form and the aggregate principal amount of certificated
Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for
Securities in certificated form, such Security in global form shall be
canceled by the Trustee. Unless expressly provided with respect to
the Securities of any series that such Security may be exchanged for
Bearer Securities, Securities in certificated form issued in exchange
for a Security in global form pursuant to this Section shall be
registered in such names and in such authorized denominations as the
Depositary for such Security in global form, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
upon any 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 Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Company, the Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory
to those of the Company, the Registrar and the Trustee requiring such
written instrument of transfer duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or for any exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration or transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4 or 10.7 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of, or exchange any Securities for a period beginning at the
opening of business 15 days before any selection for redemption of
Securities of like tenor and of the series of which such Security is a
part and ending at the close of business on the earliest date on which
the relevant notice of redemption is deemed to have been given to all
Holders of Securities of like tenor and of such series to be redeemed;
(ii) to register the transfer of or exchange any Registered Security
so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part; or (iii) to exchange any
Bearer Security so selected for redemption, except that such a Bearer
Security may be exchanged for a Registered Security of that series and
like tenor; provided that such Registered Security shall be
simultaneously surrendered for redemption.
Section 3.6. Replacement Securities. If a mutilated
Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee
to save each of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver a replacement Registered
Security, if such surrendered Security was a Registered Security, or a
replacement Bearer Security with coupons corresponding to the coupons
appertaining to the surrendered Security, if such surrendered Security
was a Bearer Security, of the same series and date of maturity, if the
Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft
of any Security or Security with a destroyed, lost or stolen coupon
and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver in lieu of any
such destroyed, lost or stolen Security or in exchange for the
Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a replacement
Registered Security, if such Holder's claim appertains to a Registered
Security, or a replacement Bearer Security with coupons corresponding
to the coupons appertaining to the destroyed, lost or stolen Bearer
Security or the Bearer Security to which such lost, destroyed or
stolen coupon appertains, if such Holder's claim appertains to a
Bearer Security, of the same series and principal amount, containing
identical terms and provisions and bearing a number not
contemporaneously outstanding with coupons corresponding to the
coupons, if any, appertaining to the destroyed, lost or stolen
Security.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Security
or coupon, pay such Security or coupon; provided, however, that
payment of principal of and any premium or interest on Bearer
Securities shall, except as otherwise provided in Section 9.2, be
payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 3.1, any
interest on Bearer Securities shall be payable only upon presentation
and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security and its coupon, if any, or the
destroyed, lost or stolen coupon, shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons.
Section 3.7. Payment of Interest; Interest Rights
Preserved. (a) Unless otherwise provided as contemplated by
Section 3.1, interest, if any, on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or
agency maintained for such purpose pursuant to Section 9.2; provided,
however, that, at the option of the Company, interest on any series of
Registered Securities that bear interest may be paid (i) by check
mailed to the address of the Person entitled thereto as it shall
appear on the Register of Holders of Securities of such series or (ii)
to the extent specified as contemplated by Section 3.1, by wire
transfer to an account maintained by the Person entitled thereto as
specified in the Register of Holders of Securities of such series.
Unless otherwise provided as contemplated by Section 3.1,
(i) interest, if any, on Bearer Securities shall be paid only against
presentation and surrender of the coupons for such interest
installments as are evidenced thereby as they mature and (ii) original
issue discount, if any, on Bearer Securities shall be paid only
against presentation and surrender of such Securities; in either case
at the office of a Paying Agent located outside the United States,
unless the Company shall have otherwise instructed the Trustee in writing
provided that any such instruction for payment in the United States does
not cause any Bearer Security to be treated as a "registration-required
obligation" under the United States law and regulations. The interest,
if any, on any temporary Bearer Security shall be paid, as to any
installment of interest evidenced by a coupon attached thereto only upon
presentation and surrender of such coupon and, as to other installments of
interest, only upon presentation of such Security for notation thereon
of the payment of such interest. If at the time a payment of
principal of or interest, if any, on a Bearer Security or coupon shall
become due, the payment of the full amount so payable at the office or
offices of all the Paying Agents outside the United States is illegal
or effectively precluded because of the imposition of exchange
controls or other similar restrictions on the payment of such amount
in Dollars, then the Company may instruct the Trustee to make such
payments at a Paying Agent located in the United States, provided that
provision for such payment in the United States would not cause such
Bearer Security to be treated as a "registration-required obligation"
under the United States law and regulations.
(b) Unless otherwise provided as contemplated by
Section 3.1, any interest on any Registered Security of any series
which is payable, but is not punctually paid or duly provided for, on
any interest payment date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered 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 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 (1) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as
it appears in the Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on a specified date 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 (2), such manner of payment shall
be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 3.8. Persons Deemed Owners. Prior to due
presentment of any Registered Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of, premium, if any, and (subject to
Section 3.7) interest, if any, on such Registered Security and for all
other purposes whatsoever, whether or not such Registered 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.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the absolute owner of such Bearer Security or coupon for
the purpose of receiving payment thereof or on account thereof and for
all other purposes whatsoever, whether or not such Bearer Security or
coupon 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 or any agent of the Company
or the Trustee shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests of a Security in global form, or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. Notwithstanding the foregoing, with
respect to any Security in global form, nothing herein shall prevent
the Company or 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 (or its nominee), as a
Holder, with respect to such Security in global form or impair, as
between such Depositary and owners of beneficial interests in such
Security in global form, the operation of customary practices
governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Security in global form.
Section 3.9. Cancellation. The Company at any time may
deliver Securities and coupons to the Trustee for cancellation. The
Registrar and any Paying Agent shall forward to the Trustee any
Securities and coupons surrendered to them for replacement, for
registration of transfer, or for exchange or payment. The Trustee
shall cancel all Securities and coupons surrendered for replacement,
for registration of transfer, or for exchange, payment, redemption or
cancellation and shall return all such canceled Securities to the
Company. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for
cancellation, except as expressly permitted in the terms of Securities
for any particular series or as permitted pursuant to the terms of
this Indenture.
Section 3.10. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.1, (i) interest on any
Securities that bear interest at a fixed rate shall be computed on the
basis of a 360-day year of twelve 30-day months and, for any period
shorter than a full quarterly period for which interest is computed,
on the basis of the actual number of days elapsed in such period, and
(ii) interest on any Securities that bear interest at a variable rate
shall be computed on the basis of the actual number of days in an
interest period divided by 360.
Section 3.11. Currency and Manner of Payment in Respect of
Securities. (a) Unless otherwise specified with respect to any
Securities pursuant to Section 3.1, with respect to Registered
Securities of any series not permitting the election provided for in
paragraph (b) below or the Holders of which have not made the election
provided for in paragraph (b) below, and with respect to Bearer Securities
of any series, except as provided in paragraph (d) below, payment of
the principal of, premium, if any, and interest, if any, on any Registered
or Bearer Security of such series will be made in the currency or currencies
or currency unit or units in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this
Section 3.11 may be modified or superseded pursuant to Section 3.1 with
respect to any Securities. For all purposes of this Indenture, currency
units shall include any composite currency.
(b) It may be provided pursuant to Section 3.1, with
respect to Registered Securities of any series, that Holders shall
have the option, subject to paragraphs (d) and (e) below, to receive
payments of principal of, premium, if any, or interest, if any, on
such Registered Securities in any of the currencies or currency units
which may be designated for such election by delivering to the Trustee
(or the applicable Paying Agent) a written election with signature
guarantees and in the applicable form established pursuant to
Section 3.1, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such currency or currency unit,
such election will remain in effect for such Holder or any transferee
of such Holder until changed by such Holder or such transferee by
written notice to the Trustee (or any applicable Paying Agent) for
such series of Registered Securities (but any such change must be made
not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be
made on such payment date, and no such change of election may be made
with respect to payments to be made on any Registered Security of such
series with respect to which an Event of Default has occurred or with
respect to which the Company has deposited funds pursuant to Article 4
or with respect to which a notice of redemption has been given by the
Company). Any Holder of any such Registered Security who shall not
have delivered any such election to the Trustee (or any applicable
Paying Agent) not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment
date in the relevant currency or currency unit as provided in
Section 3.11(a). The Trustee (or the applicable Paying Agent) shall
notify the Exchange Rate Agent as soon as practicable after the
Election Date of the aggregate principal amount of Registered
Securities for which Holders have made such written election.
(c) If the election referred to in paragraph (b) above has
been provided for with respect to any Registered Securities of a
series pursuant to Section 3.1, then, unless otherwise specified
pursuant to Section 3.1 with respect to any such Registered
Securities, not later than the fourth Business Day
after the Election Date for each payment date for such
Registered Securities, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the currency or currencies or
currency unit or units in which Registered Securities of such series
are payable, the respective aggregate amounts of principal of,
premium, if any, and interest, if any, on such Registered Securities
to be paid on such payment date, and specifying the amounts in such
currency or currencies or currency unit or units so payable in respect
of such Registered Securities as to which the Holders of Registered
Securities denominated in any currency or currencies or currency unit
or units shall have elected to be paid in another currency or currency
unit as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for with respect to any
Registered Securities of a series pursuant to Section 3.1, and if at
least one Holder has made such election, then, unless otherwise
specified pursuant to Section 3.1, on the second Business Day
preceding such payment date the Company will deliver to the Trustee
(or the applicable Paying Agent) an Exchange Rate Officers'
Certificate in respect of the Dollar, Foreign Currency or Currencies,
ECU or other currency unit payments to be made on such payment date.
Unless otherwise specified pursuant to Section 3.1, the Dollar,
Foreign Currency or Currencies, ECU or other currency unit amount
receivable by Holders of Registered Securities who have elected
payment in a currency or currency unit as provided in paragraph (b)
above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the second Business Day
(the "Valuation Date") immediately preceding each payment date, and
such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency, ECU or any other currency unit in which any of the
Securities are denominated or payable otherwise than pursuant to an
election provided for pursuant to paragraph (b) above, then, with
respect to each date for the payment of principal of, premium, if any,
and interest, if any, on the applicable Securities denominated or
payable in such Foreign Currency, ECU or such other currency unit
occurring after the last date on which such Foreign Currency, ECU or
such other currency unit was used (the "Conversion Date"), the Dollar
shall be the currency of payment for use on each such payment date
(but such Foreign Currency, ECU or such other currency unit that was
previously the currency of payment shall, at the Company's election,
resume being the currency of payment on the first such payment date
preceded by 15 Business Days during which the circumstances which gave
rise to the Dollar becoming such currency no longer prevail). Unless
otherwise specified pursuant to Section 3.1, the Dollar amount to be
paid by the Company to the Trustee or any applicable Paying Agent and
by the Trustee or any applicable Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of
a Foreign Currency other than a currency unit, the Dollar Equivalent
of the Foreign Currency or, in the case of a Foreign Currency that is
a currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner provided
in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if
the Holder of a Registered Security denominated in any currency or
currency unit shall have elected to be paid in another currency or
currency unit or in other currencies as provided in paragraph (b)
above, and (i) a Conversion Event occurs with respect to any such
elected currency or currency unit, such Holder shall receive payment
in the currency or currency unit in which payment would have been made
in the absence of such election and (ii) if a Conversion Event occurs
with respect to the currency or currency unit in which payment would
have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this
Section 3.11 (but, subject to any contravening valid election pursuant
to paragraph (b) above, the elected payment currency or currency unit,
in the case of the circumstances described in clause (i) above, or the
payment currency or currency unit in the absence of such election, in
the case of the circumstances described in clause (ii) above, shall,
at the Company's election, resume being the currency or currency unit
of payment with respect to Holders who have so elected, but only with
respect to payments on payment dates preceded by 15 Business Days
during which the circumstances which gave rise to such currency or
currency unit, in the case of the circumstances described in clause
(i) above, or the Dollar, in the case of the circumstances described
in clause (ii) above, becoming the currency or currency unit, as
applicable, of payment, no longer prevail).
(f) The "Dollar Equivalent of the Foreign Currency" shall
be determined by the Exchange Rate Agent and shall be obtained for
each subsequent payment date by the Exchange Rate Agent by converting
the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and, subject to the provisions
of paragraph (h) below, shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency (as each
such term is defined in paragraph (h) below) into Dollars at the
Market Exchange Rate for such Component Currency on the Valuation Date
with respect to each payment.
(h) For purposes of this Section 3.11 the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, ECU.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities as specified pursuant to
Section 3.1 by which the written election referred to in
Section 3.11(b) may be made.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
such Component Currency represented in the relevant currency unit,
including, but not limited to, ECU, on the Conversion Date. If after
the Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of
such Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed
in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by specified
amounts of such two or more currencies, the sum of which, at the
Market Exchange Rate of such two or more currencies on the date of
such replacement, shall be equal to the Specified Amount of such
former Component Currency and such amounts shall thereafter be
Specified Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency
unit, including, but not limited to, ECU, a Conversion Event (other
than any event referred to above in this definition of "Specified
Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and changes
in the Specified Amounts as specified above shall be in its sole
discretion and shall, in the absence of manifest error, be conclusive
for all purposes and irrevocably binding upon the Company, the Trustee
(and any applicable Paying Agent) and all Holders of Securities denominated
or payable in the relevant currency, currencies or currency units. The
Exchange Rate Agent shall promptly give written notice to the Company and
the Trustee of any such decision or determination.
In the event that the Company determines in good faith that
a Conversion Event has occurred with respect to a Foreign Currency,
the Company will promptly give written notice thereof to the Trustee
(or any applicable Paying Agent) and to the Exchange Rate Agent (and
the Trustee (or such Paying Agent) will promptly thereafter give
notice in the manner provided in Section 1.6 to the affected Holders)
specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to ECU or
any other currency unit in which Securities are denominated or
payable, the Company will promptly give written notice thereof to the
Trustee (or any applicable Paying Agent) and to the Exchange Rate
Agent (and the Trustee (or such Paying Agent) will promptly thereafter
give notice in the manner provided in Section 1.6 to the affected
Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the
Company determines in good faith that any subsequent change in any
Component Currency as set forth in the definition of Specified Amount
above has occurred, the Company will similarly give written notice to
the Trustee (or any applicable Paying Agent) and to the Exchange Rate
Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information
received by it from the Company and the Exchange Rate Agent and shall
not otherwise have any duty or obligation to determine the accuracy or
validity of such information independent of the Company or the
Exchange Rate Agent.
Section 3.12. Appointment and Resignation of Exchange Rate
Agent. (a) Unless otherwise specified pursuant to Section 3.1, if
and so long as the Securities of any series (i) are denominated in a
currency other than Dollars or (ii) may be payable in a currency other
than Dollars, or so long as it is required under any other provision
of this Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange
Rate Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 3.11 for the purpose of
determining the applicable rate of exchange and, if applicable, for
the purpose of converting the issued currency or currencies or
currency unit or units into the applicable payment currency or
currency unit for the payment of principal, premium, if any, and
interest, if any, pursuant to Section 3.11.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this
Section shall become effective until the acceptance of appointment by
the successor Exchange Rate Agent as evidenced by a written instrument
delivered to the Company and the Trustee of the appropriate series of
Securities accepting such appointment executed by the successor
Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office
of the Exchange Rate Agent for any cause, with respect to the
Securities of one or more series, the Company, by or pursuant to a
Board Resolution, shall promptly appoint a successor Exchange Rate
Agent or Exchange Rate Agents with respect to the Securities of that
or those series (it being understood that any such successor Exchange
Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified
pursuant to Section 3.1, at any time there shall only be one Exchange
Rate Agent with respect to the Securities of any particular series
that are originally issued by the Company on the same date and that
are initially denominated and/or payable in the same currency or
currencies or currency unit or units).
Section 3.13. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if
so, the Trustee shall use "CUSIP" numbers (in addition to the other
identification numbers printed on the Securities) in notices of
redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such
numbers.
ARTICLE 4
Satisfaction, Discharge and Defeasance
--------------------------------------
Section 4.1. Termination of Company's Obligations Under
the Indenture. Except as otherwise provided as contemplated by
Section 3.1, this Indenture shall upon Company Request cease to be of
further effect with respect to Securities of or within any series and
any coupons appertaining thereto (except as to any surviving rights of
registration of transfer or exchange of such Securities and
replacement of such Securities which may have been lost, stolen or
mutilated as herein expressly provided for) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to such
Securities and any coupons appertaining thereto when:
(1) either
(A) all such Securities previously authenticated and
delivered and all coupons appertaining thereto (other than
(i) such coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not
required or has been waived as provided in Section 3.5, (ii)
such Securities and coupons which have been destroyed, lost
or stolen and which have been replaced or paid as provided
in Section 3.6, (iii) such coupons appertaining to Bearer
Securities called for redemption and maturing after the
relevant Redemption Date, surrender of which has been waived
as provided in Section 10.6 and (iv) such Securities and
coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 9.3) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, 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,
and the Company, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies or currency
unit or units in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal, premium, if any, and interest, if any, with respect
thereto, to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligation of the Company to the Trustee and any predecessor Trustee
under Section 6.9, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the
last paragraph of Section 9.3 shall survive.
Section 4.2. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 9.3, 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 Securities,
the coupons 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, premium, if any, and any interest for whose
payment such money has been deposited with or received by the Trustee,
but such money need not be segregated from other funds except to the
extent required by law.
Section 4.3. Applicability of Defeasance Provisions;
Company's Option to Effect Defeasance or Covenant Defeasance. If
pursuant to Section 3.1 provision is made for either or both of (i)
defeasance of the Securities of or within a series under Section 4.4
or (ii) covenant defeasance of the Securities of or within a series
under Section 4.5, then the provisions of such Section or Sections, as
the case may be, together with the provisions of Sections 4.6 through
4.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 3.1 with respect to any Securities, shall be
applicable to such Securities and any coupons appertaining thereto,
and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any coupons appertaining thereto,
elect to have Section 4.4 (if applicable) or Section 4.5 (if applicable)
be applied to such Outstanding Securities and any coupons appertaining
thereto upon compliance with the conditions set forth below in this
Article.
Section 4.4. Defeasance and Discharge. Upon the Company's
exercise of the option specified in Section 4.3 applicable to this
Section with respect to the Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations
with respect to such Securities and any coupons appertaining thereto
on the date the conditions set forth in Section 4.6 are satisfied
(hereinafter "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 any coupons
appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 4.7 and the other
Sections of this Indenture referred to in clause (ii) of this Section,
and to have satisfied all its other obligations under such Securities
and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned
(and the Trustee, at the expense of the Company, shall on Company
Order execute proper instruments acknowledging the same), except the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Securities and any
coupons appertaining thereto to receive, solely from the trust funds
described in Section 4.6(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium if any, and
interest, if any, on such Securities or any coupons appertaining
thereto when such payments are due; (ii) the Company's obligations
with respect to such Securities under Sections 3.5, 3.6, 9.2 and 9.3
and with respect to the payment of additional amounts, if any, payable
with respect to such Securities as specified pursuant to Section
3.l(b)(16); (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder; and (iv) this Article 4. Subject to compliance
with this Article 4, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section
4.5 with respect to such Securities and any coupons appertaining
thereto. Following a defeasance, payment of such Securities may not
be accelerated because of an Event of Default.
Section 4.5. Covenant Defeasance. Upon the Company's
exercise of the option specified in Section 4.3 applicable to this
Section with respect to any Securities of or within a series, the
Company shall be released from its obligations under Article 7 and
Sections 9.4 and 9.5, and, if specified pursuant to Section 3.1, its
obligations under any other covenant, with respect to such Securities
and any coupons appertaining thereto on and after the date the
conditions set forth in Section 4.6 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act
of Holders (and the consequences of any thereof) in connection with
Article 7 and Sections 9.4 and 9.5, or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to
such Securities and any coupons appertaining thereto, 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 Section or such other
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason
of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 5.1(3)
or 5.1(5) or otherwise, as the case may be, but, except as specified above,
the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
Section 4.6. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of
Section 4.4 or Section 4.5 to any Securities of or within a series and
any coupons appertaining thereto:
(a) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee
satisfying the requirements of Section 6.11 who shall agree to
comply with, and shall be entitled to the benefits of, the
provisions of Sections 4.3 through 4.9 inclusive and the last
paragraph of Section 9.3 applicable to the Trustee, for purposes
of such Sections also a "Trustee") as trust funds in trust for
the purpose of making the payments referred to in clauses (x) and
(y) of this Section 4.6(a), specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such
Securities and any coupons appertaining thereto, with
instructions to the Trustee as to the application thereof, (A)
money in an amount (in such currency, currencies or currency unit
in which such Securities and any coupons appertaining thereto are
then specified as payable at Maturity), or (B) if Securities of
such series are not subject to repayment at the option of
Holders, Government Obligations which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment referred to in clause (x) or (y) of this
Section 4.6(a), money in an amount or (C) a combination thereof
in an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, (x)
the principal of, premium, if any, and interest, if any, on such
Securities and any coupons appertaining thereto on the Maturity
of such principal or installment of principal or interest and (y)
any mandatory sinking fund payments applicable to such Securities
on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities
and any coupons appertaining thereto. Before such a deposit the
Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance
with Article 10, which shall be given effect in applying the
foregoing.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or result in a breach or violation
of, or constitute a default under, any other material agreement
or instrument to which the Company is a party or by which it is
bound.
(c) No Default or Event of Default under Section 5.1(4) or
5.1(5) with respect to such Securities and any coupons
appertaining thereto shall have occurred and be continuing during
the period commencing on the date of such deposit and ending on
the 91st day after such date (it being understood that this
condition shall not be deemed satisfied until the expiration of
such period).
(d) In the case of an election under Section 4.4, the
Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the
Holders of such Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to
Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit,
defeasance and discharge had not occurred.
(e) In the case of an election under Section 4.5, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Securities and any coupons
appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance under Section 4.4
or the covenant defeasance under Section 4.5 (as the case may be)
have been complied with and an Opinion of Counsel to the effect
that either (i) as a result of a deposit pursuant to subsection
(a) above and the related exercise of the Company's option under
Section 4.4 or Section 4.5 (as the case may be), registration is
not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds
representing such deposit or by the trustee for such trust funds
or (ii) all necessary registrations under said act have been
effected.
(g) Such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute terms,
conditions or limitations which may be imposed on the Company in
connection therewith as contemplated by Section 3.1.
Section 4.7. Deposited Money and Government Obligations to
Be Held in Trust. Subject to the provisions of the last paragraph of
Section 9.3, all money and Government Obligations (or other property
as may be provided pursuant to Section 3.1) (including the proceeds thereof)
deposited with the Trustee pursuant to Section 4.6 in respect of any
Securities of any series and any coupons appertaining thereto shall be
held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any coupons appertaining thereto 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 Holders of such Securities and any
coupons appertaining thereto of all sums due and to become due thereon
in respect of principal, premium, if any, and interest, if any, but
such money need not be segregated from other funds except to the
extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 3.1, if, after a deposit referred to in Section
4.6(a) has been made, (i) the Holder of a Security in respect of which
such deposit was made is entitled to, and does, elect pursuant to
Section 3.11(b) or the terms of such Security to receive payment in a
currency or currency unit other than that in which the deposit
pursuant to Section 4.6(a) has been made in respect of such Security,
or (ii) a Conversion Event occurs as contemplated in Section 3.11(d)
or 3.11(e) or by the terms of any Security in respect of which the
deposit pursuant to Section 4.6(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of, premium, if any,
and interest, if any, on such Security as the same becomes due out
of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election
or Conversion Event based on the applicable Market Exchange Rate for
such currency or currency unit in effect on the second Business Day
prior to each payment date, except in the case of a Conversion Event
with respect to such currency or currency unit which is in effect
(as nearly as feasible) at the time of the Conversion Event.
Section 4.8. Transfers and Distribution at Company
Request. To the extent permitted by the Financial Accounting
Standards Board Statement of Financial Accounting Standards No. 76, as
amended or interpreted by the Financial Accounting Standards Board
from time to time, or any successor thereto ("Standard No. 76"), or to
the extent permitted by the Commission, the Trustee shall, from time
to time, take one or more of the following actions as specified in a
Company Request:
(a) Retransfer, reassign and deliver to the Company any
securities deposited with the Trustee pursuant to Section 4.6(a),
provided that the Company shall, in substitution therefor,
simultaneously transfer, assign and deliver to the Trustee other
Government Obligations appropriate to satisfy the Company's
obligations in respect of the relevant Securities; and
(b) The Trustee (and any Paying Agent) shall promptly pay
to the Company, upon Company Request, any excess money or
securities held by them at any time, including, without
limitation, any assets deposited with the Trustee pursuant to
Section 4.6(a) exceeding those necessary for the purposes of
Section 4.6(a).
The Trustee shall not take the actions described in subsections (a)
and (b) of this Section 4.8 unless it shall have first received a
written report of Xxxxxx Xxxxxxxx LLP, or another nationally
recognized independent public accounting firm, (i) expressing their
opinion that the contemplated action is permitted by Standard No. 76
or the Commission, for transactions accounted for as extinguishment of
debt under the circumstances described in paragraph 3.c of Standard
No. 76 or any successor provision, and (ii) verifying the accuracy,
after giving effect to such action or actions, of the computations
which demonstrate that the amounts remaining to be earned on the
Government Obligations deposited with the Trustee pursuant to Section
4.6(a) will be sufficient for purposes of Section 4.6(a).
ARTICLE 5
Defaults and Remedies
---------------------
Section 5.1. Events of Default. An "Event of Default"
occurs with respect to the Securities of any series if (whatever the
reason for such Event of Default and whether it shall be occasioned by
the provisions of Article 12 or be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) the Company defaults in the payment of interest on any
Security of that series or any coupon appertaining thereto or any
additional amount payable with respect to any Security of that
series as specified pursuant to Section 3.1(b)(16) when the same
becomes due and payable and such default continues for a period
of 30 days;
(2) the Company defaults in the payment of the principal of
or any premium on any Security of that series when the same
becomes due and payable at its Maturity or on redemption or
otherwise, or in the payment of a mandatory sinking fund payment
when and as due by the terms of the Securities of that series,
and in each case such default continues for a period of ten days;
(3) the Company defaults in the performance of, or
breaches, any covenant or warranty of the Company in this
Indenture, with respect to any Security of that series (other
than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with), and such default or breach continues for a period of 60
days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series, a written notice
specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (A) commences a voluntary case, (B) consents to
the entry of an order for relief against it in an involuntary
case, (C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or (D) makes a general
assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (A) is for relief against
the Company in an involuntary case, (B) appoints a Custodian of
the Company for all or substantially all of its property, or (C)
orders the liquidation of the Company; and the order or decree
remains unstayed and in effect for 90 days; or
(6) any other Event of Default provided as contemplated by
Section 3.1 with respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
Section 5.2. Acceleration; Rescission and Annulment. If an
Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of all of the
outstanding Securities of that series, by written notice to the
Company (and, if given by the Holders, to the Trustee), may declare
the principal (or, if the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms of that series) of
all the Securities of that series to be due and payable and upon any
such declaration such principal (or, in the case of original Issue
Discount Securities or Indexed Securities, such specified amount)
shall be immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a
majority in aggregate principal amount of the outstanding Securities
of that series, by written notice to the Trustee, may rescind and
annul such declaration and its consequences if all existing Defaults
and 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 5.7. 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
(1) default is made in the payment of any interest on any
Security or coupon, if any, when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof and
such default continues for a period of 10 days,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities or coupons, if any, the
whole amount then due and payable on such Securities for principal,
premium, if any, and interest, if any, and, to the extent that payment
of any such interest shall be legally enforceable, interest on any
overdue principal or premium, if any, and on any overdue interest, at
the rate or rates prescribed therefor in such Securities or coupons,
if any, 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 an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee and the Holders of Securities allowed in any judicial
proceedings relating to the Company, its creditors or its property.
Section 5.5. Trustee May Enforce Claims Without Possession
of Securities. All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production
thereof in any proceeding relating thereto.
Section 5.6. Delay or Omission Not Waiver. No delay or
omission by the Trustee or any Holder of any Securities to exercise
any right or remedy accruing upon an Event of Default
shall impair any such right or remedy or constitute a waiver of or
acquiescence in any such Event of Default.
Section 5.7. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of Outstanding Securities of
any series by notice to the Trustee may waive on behalf of the Holders
of all Securities of such series a past Default or Event of Default
with respect to that series and its consequences except (i) a Default
or Event of Default in the payment of the principal of, premium, if
any, or interest, if any, on any Security of such series or any coupon
appertaining thereto or (ii) in respect of a covenant or provision
hereof which pursuant to Section 8.2 cannot be amended or modified
without the consent of the Holder of each outstanding Security of such
series adversely 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.
Section 5.8. Control by Majority. The Holders of a
majority in aggregate principal amount of the Outstanding Securities
of each series affected (with each such series voting as a class)
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 it with respect to
Securities of that series; provided, however, that (i) the Trustee may
refuse to follow any direction that conflicts with law or this
Indenture, (ii) the Trustee may refuse to follow any direction that is
unduly prejudicial to the rights of the Holders of Securities of such
series not consenting, or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the Trustee in
personal liability and (iii) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such
direction.
Section 5.9. Limitation on Suits by Holders. No Holder of
any Security of any series or any related coupons 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:
(1) the Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities of that series have made a
written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to the Trustee against any loss, liability
or expense to be, or which may be, incurred by the Trustee in
pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such
notice, request and the offer of indemnity has failed to
institute any such proceedings; and
(5) during such 60-day period, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of that
series have not given to the Trustee a direction inconsistent
with such written request.
No one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference
over any other of 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 of such Holders.
Section 5.10. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, but subject to
Section 9.2, the right of any Holder of a Security or coupon to
receive payment of principal of, premium, if any, and, subject to
Sections 3.5 and 3.7, interest, if any, on the Security, on or after
the respective due dates expressed in the Security (or, in case of
redemption, on the redemption dates) and the right of any Holder of a
coupon to receive payment of interest due as provided in such coupon,
or, subject to Section 5.9, to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
Section 5.11. Application of Money Collected. Subject to
Article 12, if the Trustee collects any money pursuant to this
Article, it shall pay out the money 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, premium, if any, or interest, if
any, upon presentation of the Securities and any coupons appertaining
thereto and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities and coupons in respect of
which or for the benefit of which such money has been collected
for amounts due and unpaid on such Securities for principal of,
premium, if any, and interest, if any, 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, if any, respectively; and
Third: to the Person or Persons entitled thereto.
Section 5.12. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 5.13. 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 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 5.14. Undertaking for Costs. 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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or to make such an assessment in
any suit instituted by the Company, and any provision of the Trust
Indenture Act to such effect is hereby expressly excluded from this
Indenture, as permitted by the Trust Indenture Act.
Section 5.15. Action Respecting Securities Held in UAL
Corporation Capital Trust. With respect to any series of Securities
held as trust assets of a UAL Corporation Capital Trust and with
respect to which a Security Exchange has not theretofore occurred, any
authorization, approval, consent, request, notice, waiver or other
action of Holders required or permitted to be taken under this
Indenture or pursuant to the terms of any Security, in addition to any
other authorization, approval, consent, request, notice, waiver or
other action required hereunder, will require such authorization,
approval, consent, request, notice, waiver or other action of holders
of the Preferred Securities and the Common Securities of such UAL
Corporation Capital Trust as may be required under the Declaration of
Trust of such UAL Corporation Capital Trust.
ARTICLE 6
The Trustee
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Section 6.1. Certain Duties and Responsibilities. (a)
Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may 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.
(b) In case an Event of Default has occurred and is
continuing with respect to the Securities of any series, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture with respect to the Securities of such series, and use the
same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or
her 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:
(1) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(2) 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
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
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.
Section 6.2. Rights of Trustee. Subject to the provisions
of the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note 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 (other than delivery of any Security, and any
coupons appertaining thereto, to the Trustee for authentication
and delivery pursuant to Section 3.3, which shall be sufficiently
evidenced as provided therein), 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 of its selection
and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon.
(e) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction.
(f) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note or
other paper or document, but the Trustee, in its 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
to examine the books, records and premises of the Company,
personally or by agent or attorney.
(g) The Trustee may act through agents or attorneys and
shall not be responsible for the misconduct or negligence of any
agent or attorney appointed with due care.
(h) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized
or within its rights or powers.
(i) The Trustee shall not be required 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
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.
Section 6.3. Trustee May Hold Securities. The Trustee,
any Paying Agent, any Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee
of Securities and coupons and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, may otherwise deal with the Company, an
Affiliate or Subsidiary with the same rights it would have if it were
not Trustee, Paying Agent, Registrar or such other agent.
Section 6.4. Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed to in writing with the Company.
Section 6.5. Trustee's Disclaimer. The recitals contained
herein and in the Securities, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for their correctness. The
Trustee makes no representation as to the validity or adequacy of this
Indenture, the Securities or any coupon. The Trustee shall not be
accountable for the Company's use of the proceeds from the Securities
or for monies paid over to the Company pursuant to the Indenture.
Section 6.6. Notice of Defaults. If a Default occurs and
is continuing with respect to the Securities of any series and if it
is known to the Trustee, the Trustee shall, within 90 days after it
occurs, transmit, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, notice of all uncured Defaults
known to it; provided, however, that, in the case of a Default in
payment on the Securities of any series, the Trustee may withhold the
notice if and so long as the board of directors, the executive
committee or a committee of its Responsible Officers in good faith
determines that withholding such notice is in the interests of Holders
of Securities of that series; provided further that, in the case of
any default or breach of the character specified in Section 5.1(3)
with respect to the Securities and coupons of such series, no such
notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities
of such series.
Section 6.7. Reports by Trustee to Holders. (a) Within
60 days after each May 15 of each year commencing with the first
May 15 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of the Trust
Indenture Act a brief report dated as of such May 15 if required by
Section 313(a) of the Trust Indenture Act. The Trustee also shall
comply with Section 313(b) and (d) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the
Commission and with the Company. The Company will promptly notify the
Trustee when the Securities are listed on any stock exchange.
Section 6.8. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of Holders of
Securities of each series. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee semiannually on or before the
last day of June and December in each year, and at such other times as
the Trustee may request in writing, a list, in such form and as of
such date as the Trustee may reasonably require, containing all the
information in the possession of the Registrar, the Company or any of
its Paying Agents other than the Trustee as to the names and addresses
of Holders of Securities of each such series. If there are Bearer
Securities of any series outstanding, even if the Trustee is the
Registrar, the Company shall furnish to the Trustee such a list
containing such information with respect to Holders of such Bearer
Securities only.
Section 6.9. Compensation and Indemnity. (a) The Company
shall pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it in connection with
the performance of its duties under this Indenture, except any such
expense as may be attributable to its negligence or bad faith.
(b) The Company shall indemnify the Trustee and any
predecessor Trustee for, and hold it harmless against, any loss,
liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), incurred by
it without negligence or bad faith on its part arising out of or in
connection with its acceptance or administration of the trust or
trusts hereunder. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall cooperate in the defense. The Trustee
may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent.
(c) The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through
negligence or bad faith.
(d) To secure the payment obligations of the Company
pursuant to this Section, the Trustee shall have a lien prior to the
Securities of any series on all money or property held or collected by
the Trustee, except that held in trust to pay principal, premium, if
any, and interest, if any, on particular Securities.
(e) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(4) or
Section 5.1(5), 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.
(f) The provisions of this Section shall survive the
termination of this Indenture.
Section 6.10. Replacement of Trustee. (a) The resignation
or removal of the Trustee and the appointment of a successor Trustee
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of any series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 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 Holders of a majority in aggregate principal amount
of the Outstanding Securities of any series may remove the Trustee
with respect to that series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the
Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the
Trust Indenture Act after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security
for at least six months;
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at
least six months; or
(3) the Trustee becomes incapable of acting, is adjudged a
bankrupt or an insolvent or a receiver or public officer takes
charge of the Trustee or its property or affairs for the purpose
of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee with respect to all Securities, or
(ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all other persons similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to
Securities of one or more series, the Company, by or pursuant to Board
Resolution, shall promptly appoint a successor Trustee 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
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 6.11, any Holder who has been a bona
fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
Section 6.11. Acceptance of Appointment by Successor. (a)
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the
successor Trustee, without further act, deed or conveyance, shall
become vested with all the rights, powers and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and such successor Trustee
shall execute and deliver an indenture supplemental hereto wherein
such 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, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring
Trustee is not retiring with respect to all Securities, shall contain
such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (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 constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and upon the
execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under the Trust Indenture Act.
(e) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series in the manner provided for notices to the
Holders of Securities in Section 1.6. 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 6.12. Eligibility; Disqualification. There shall
at all times be a Trustee hereunder which shall be eligible to act as
Trustee under Section 310(a)(1) of the Trust Indenture Act and shall
have a combined capital and surplus of at least $75,000,000. If such
corporation publishes reports of condition at least annually, pursuant
to law or the requirements of Federal, State, Territorial or District
of Columbia supervising or examining authority, then, for the purposes
of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 6.13. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which the Trustee shall be a party, or any corporation succeeding to
all or substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 6.14. Appointment of Authenticating Agent. The
Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued
upon original issue, exchange, registration of transfer or partial
redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any
such appointment shall be evidenced by an instrument in writing signed
by a Responsible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Company. Wherever reference is
made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and, except as may otherwise
be provided pursuant to Section 3.1, shall at all times be a bank or
trust company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any
State or the District of Columbia, authorized under such laws to act
as Authenticating Agent, having a combined capital and surplus of not
less than $1,500,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee
for such series and to the Company. The Trustee for any series of
Securities may at any time terminate the agency of an Authenticating
Agent by giving written notice of termination to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of
this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve
in the manner set forth in Section 1.6. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent
herein. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its
reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of a series issued under the within-
mentioned Indenture.
Dated: ____________________ The First National Bank of Chicago,
as Trustee
By________________________
as Authenticating Agent
By________________________
Authorized Signatory
Sections 6.2, 6.3, 6.5 and 6.9 shall be applicable to any
Authenticating Agent.
Section 6.15. Trustee's Application for Instructions from
the Company. Any application by the Trustee for written instructions
from the Company may, at the option of the Trustee, set forth in
writing any action proposed to be taken or omitted
by the Trustee under this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of,
the Trustee in accordance with a proposal included in such application
on or after the date specified in such application (which date shall
not be less than fifteen Business Days after the date any officer of
the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless
prior to taking any such action (or the effective date in the case of
an omission), the Trustee shall have received written instructions in
response to such application specifying the action to be taken or
omitted.
ARTICLE 7
Consolidation, Merger or Sale by the Company
--------------------------------------------
The Company may merge or consolidate with or into any other
corporation or sell, convey, transfer or otherwise dispose of all or
substantially all of its assets to any person, firm or corporation, if
(i)(A) in the case of a merger or consolidation, the Company is the
surviving corporation or (B) in the case of a merger or consolidation
where the Company is not the surviving corporation and in the case of
any such sale, conveyance or other disposition, the successor or
acquiring corporation is a corporation organized and existing under
the laws of the United States or a State thereof and such corporation
expressly assumes by supplemental indenture all the obligations of the
Company under the Securities and any coupons appertaining thereto and
under this Indenture, (ii) immediately thereafter, giving effect to
such merger or consolidation, or such sale, conveyance, transfer or
other disposition, no Default or Event of Default shall have occurred
and be continuing, and (iii) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that
such merger or consolidation, or such sale, conveyance, transfer or
other disposition complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with. In the event of the assumption by a successor
corporation of the obligations of the Company as provided in clause
(i)(B) of the immediately preceding sentence, such successor
corporation shall succeed to and be substituted for the Company
hereunder and under the Securities and any coupons appertaining
thereto and all such obligations of the Company shall terminate.
ARTICLE 8
Supplemental Indentures
------------------------
Section 8.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into indentures supplemental hereto, in
form reasonably satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities;
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;
(3) to add any additional Events of Default with respect to
all or any series of Securities;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Bearer Securities (including, without limitation, to
provide that Bearer Securities may be registrable as to principal
only) or to facilitate the issuance of Securities in global form;
(5) to add to, change or eliminate any of the provisions of
this Indenture, provided that any such addition, change or
elimination shall become effective only when there is no Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.10;
(9) if allowed without penalty under applicable laws and
regulations, to permit payment in the United States (including
any of the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction of
principal, premium, if any, or interest, if any, on Bearer
Securities or coupons, if any;
(10) to correct or supplement any provision herein or in any
supplemental indenture which may be defective or inconsistent
with any other provision herein or in any supplemental indenture,
to cure any ambiguity or correct any mistake or to make any other
provisions with respect to matters or questions arising under
this Indenture, provided such action shall not adversely affect
the interests of the Holders of Securities of any series; or
(11) to comply with any requirement of the Commission in
connection with the qualification of this Indenture under the
Trust Indenture Act.
Section 8.2. Supplemental Indentures With Consent of
Holders. With the written consent of the Holders of a majority of the
aggregate principal amount of the Outstanding Securities of each
series adversely affected by such supplemental indenture, the Company
and the Trustee may enter into an indenture or indentures supplemental
hereto to add any provisions to or to change or eliminate any
provisions of this Indenture or of any other indenture supplemental
hereto or to modify the rights of the Holders of Securities of each
such series; provided, however, that without the consent of the Holder
of each Outstanding Security affected thereby, an amendment under this
Section may not:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security (except
that a valid extension of an interest payment period by the
Company, in accordance with the terms of any indenture
supplemental hereto, shall not constitute a change for this
purpose) or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 5.2, or change the coin or currency in which, any
Securities or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or modify the
provisions of this indenture with respect to the subordination of
the Securities, or adversely affect the right to convert any
Security as may be provided pursuant to Section 3.1 herein;
(2) reduce the percentage of principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture;
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 9.2;
(4) adversely affect the right to convert the Securities of
any series as provided in Article 12 hereof; or
(5) make any change in Section 5.7 or this Section 8.2
except to increase any percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived
with the consent of the Holders of each Outstanding Security
affected thereby.
For the purposes of this Section 8.2, if the Securities of
any series are issuable upon the exercise of warrants, any holder of
an unexercised and unexpired warrant with respect to such series shall
not be deemed to be a Holder of Outstanding Securities of such series
in the amount issuable upon the exercise of such warrants.
A supplemental indenture that 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 that 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 is not necessary under this Section 8.2 for the Holders
to consent to the particular form of any proposed supplemental
indenture, but it is sufficient if they consent to the substance
thereof.
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 canceled and of no further effect.
Section 8.3. Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply
with the requirements of the Trust Indenture Act as then in effect.
Section 8.4. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Section 8.5. 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 and of any coupon appertaining
thereto shall be bound thereby.
Section 8.6. Reference in Securities to Supplemental
Indentures. Securities, including any coupons, 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 including any coupons 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 including any coupons of such
series.
ARTICLE 9
Covenants
---------
Section 9.1. Payment of Principal, Premium, If Any, and
Interest. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually
pay the principal of, premium, if any, and interest, if any, on the
Securities of that series in accordance with the terms of the
Securities of such series, any coupons appertaining thereto and this
Indenture. An installment of principal or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the
installment.
If at any time while the Trustee is the Holder of any
Securities, any UAL Corporation Capital Trust or the Trustee is
required to pay any taxes, duties, assessments or governmental charges
of whatever nature (other than withholding taxes) imposed by the
United States, or any other taxing authority, then, in any such case,
the Company will pay as additional interest ("Additional Interest") on
the Securities held by the Trustee, such amounts as shall be required
so that the net amounts received and retained by such UAL Corporation
Capital Trust and the Trustee after paying any such taxes, duties,
assessments or other governmental charges will be not less than the
amounts such UAL Corporation Capital Trust and the Trustee would have
received had no such taxes, duties, assessments or other governmental
charges been imposed.
Section 9.2. Maintenance of Office or Agency. If
Securities of a series are issued as Registered Securities, the
Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series
may be surrendered for registration of transfer or exchange, where
Securities may be surrendered for conversion and where notices and
demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company will maintain, (i)
subject to any laws or regulations applicable thereto, an office or
agency in a Place of Payment for that series which is located outside
the United States, where Securities of that series and related coupons
may be presented and surrendered for payment; provided, however, that
if the Securities of that series are listed on The International Stock
Exchange of the United Kingdom and the Republic of Ireland Limited,
the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located
outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (ii)
subject to any laws or regulations applicable thereto, in a Place
of Payment for that series located outside the United States,
where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified as contemplated by Section 3.1,
no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United
States, by check mailed to any address in the United States, by
transfer to an account located in the United States or upon
presentation or surrender in the United States of a Bearer Security or
coupon for payment, even if the payment would be credited to an
account located outside the United States; provided, however, that, if
the Securities of a series are denominated and payable in Dollars,
payment of principal of and any premium or interest on any such Bearer
Security shall be made at the office of the Company's Paying Agent in
the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities (including any coupons,
if any) 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 (including any coupons, if any) 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.
Unless otherwise specified as contemplated by Section 3.1,
the Trustee shall initially serve as Paying Agent.
Section 9.3. Money for Securities to Be Held in Trust;
Unclaimed Money. If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it will, on or
before each due date of the principal of, premium, if any, or
interest, if any, on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal, premium, if any, or interest, if
any, 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 in writing of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest, if any, on Securities
of that 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;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of principal, premium, if any, or interest,
if any, on the Securities; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect
to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of any principal,
premium or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium, if any, or
interest, if any, 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 and coupon,
if any, shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation
in The City of New York, or cause to be mailed to such Holder, notice
that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
Section 9.4. Corporate Existence. Subject to Article 7,
the Company will at all times do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence; provided that nothing in this Section 9.4 shall prevent the
abandonment or termination of any right or franchise of the Company,
if, in the opinion of the Company, such abandonment or termination is
in the best interests of the Company and does not materially adversely
affect the ability of the Company to operate its business or to
fulfill its obligations hereunder.
Section 9.5. Insurance. The Company covenants and agrees
that it will maintain, and cause each of its Subsidiaries to maintain,
insurance with responsible and reputable insurance companies or
associations or through a program of self-insurance in such amounts
and covering such risks as are consistent with sound business practice
for corporations engaged in the same or a similar business similarly
situated.
Section 9.6. Reports by the Company. The Company
covenants:
(a) to file with the Trustee, within 30 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 it may be required to file with the Commission
pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if it is not required to
file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and
periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered
on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents
and reports with respect to compliance by it with the conditions
and covenants provided for in this Indenture, as may be required
from time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and
to the extent provided in section 313(c) of the Trust Indenture
Act, such summaries of any information, documents and reports
required to be filed by it pursuant to subsections (a) and (b) of
this Section 9.6, 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 9.7. Annual Review Certificate. The Company
covenants and agrees to deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, a brief certificate from
the principal executive officer, principal financial officer, or
principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this Section 9.7, such compliance shall be
determined without regard to any period of grace or requirement of
notice provided under this Indenture.
Section 9.8. Limitation on Dividends and Capital Stock
Acquisitions. The Company covenants and agrees that, if at any time
it has failed to make any payment of interest, principal or premium on
the Securities when due (after giving effect to any grace period for
payment thereof as provided in Section 5.1), the Company will not,
until all defaulted interest on the Securities and all principal and
premium, if any, then due and payable on the Securities shall have
been paid in full, (i) declare, set aside or pay any dividend or
distribution on any capital stock of the Company (except for dividends
or distributions in shares of its capital stock or rights to acquire
shares of its capital stock), or (ii) repurchase, redeem or otherwise
acquire, or make any sinking fund payment for the purchase or redemption
of, any shares of its capital stock (except by conversion into or exchange
for shares of its capital stock and except for a redemption, purchase or
other acquisition of shares of its capital stock made for the purpose of
an employee incentive plan or benefit plan of the Company or any of its
subsidiaries); provided, however, that any moneys theretofore
deposited in any sinking fund with respect to any preferred stock of
the Company in compliance with this Section 9.8 and the provisions of
such sinking fund may thereafter be applied to the purchase or
redemption of such preferred stock in accordance with the terms of
such sinking fund without regard to the restrictions in this Section
9.8.
Section 9.9. Notice of Default. The Company shall file
with the Trustee written notice of the occurrence of any Default or
Event of Default within 30 Business Days of its becoming aware of any
such Default or Event of Default.
ARTICLE 10
Redemption
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Section 10.1. Applicability of Article. Securities
(including coupons, if any) 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 Securities of any series) in accordance with this Article.
Section 10.2. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities, including coupons,
if any, shall be evidenced by or pursuant to a Board Resolution or an
Officers' Certificate. In the case of any redemption at the election
of the Company of less than all the Securities or coupons, if any, of
any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities (i) prior to
the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture or (ii)
pursuant to an election of the Company which is subject to a condition
specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 10.3. Selection of Securities to Be Redeemed.
Unless otherwise specified as contemplated by Section 3.1, if less
than all the Securities (including coupons, if any) of a series with
the same original issue date, interest rate and Stated Maturity are to
be redeemed, the Trustee, not more than 45 days prior to the
redemption date, shall select the Securities of the series to be
redeemed in such manner as the Trustee shall deem fair and
appropriate. The Trustee shall make the selection from Securities of
the series that are Outstanding and that have not previously been
called for redemption and may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for
Securities, including coupons, if any, of that series or any integral
multiple thereof) of the principal amount of Securities, including
coupons, if any, of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. The
Trustee shall promptly notify the Company in writing of the Securities
selected by the Trustee for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities
(including coupons, if any) shall relate, in the case of any
Securities (including coupons, if any) redeemed or to be redeemed only
in part, to the portion of the principal amount of such Securities
(including coupons, if any) which has been or is to be redeemed.
Section 10.4. Notice of Redemption. Unless otherwise
specified as contemplated by Section 3.1, notice of redemption shall
be given in the manner provided in Section 1.6 not less than 30 days
nor more than 60 days prior to the Redemption Date to the Holders of
the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of a
series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amounts) of the particular
Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of
such Security, the holder will receive, without a charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date,
are to be surrendered for payment for the Redemption Price;
(6) that Securities of the series called for redemption and
all unmatured coupons, if any, appertaining thereto must be
surrendered to the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date;
(8) that the redemption is for a sinking fund, if such is
the case;
(9) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must
be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished; and
(10) CUSIP number.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company s request, by the Trustee in
the name and at the expense of the Company.
Section 10.5. Deposit of Redemption Price. On or prior to
12:00 noon New York City time on 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 9.3) an amount of money in the currency or
currencies (including currency units or composite currencies) in which
the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.1 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and
(unless the Redemption Date shall be an Interest Payment Date)
interest accrued to the Redemption Date on, all Securities or portions
thereof which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund
payment obligation from being satisfied by delivering and crediting
Securities (including Securities redeemed otherwise than through a
sinking fund), the Company may deliver such Securities to the Trustee
for crediting against such payment obligation in accordance with the
terms of such Securities and this Indenture.
Section 10.6. 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, and from and after such
date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest and the coupons for any such interest appertaining to
any Bearer Security so to be redeemed, except to the extent provided
below, shall be void. Except as provided in the next succeeding
paragraph, upon surrender of any such Security, including coupons, if
any, for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is
prior to the Redemption Date shall be payable only at an office or
agency located outside the United States and its possessions (except
as otherwise provided in Section 9.2) and, unless otherwise specified
as contemplated by Section 3.1, only upon presentation and surrender
of coupons for such interest; and provided further that, unless
otherwise specified as contemplated by Section 3.1, installments of
interest on Registered Securities whose Stated Maturity is prior to
the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency
located outside of the United States (except as otherwise provided
pursuant to Section 9.2) and, unless otherwise specified as contemplated
by Section 3.1, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Security.
Section 10.7. Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part at any Place of Payment
therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), the
Company shall execute and the Trustee shall authenticate and deliver
to the Holder of that Security, without service charge, a new Security
or Securities of the same series, the same form and the same Maturity
in any authorized denomination equal in aggregate principal amount to
the unredeemed portion of the principal of the Security surrendered.
ARTICLE 11
Sinking Funds
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Section 11.1. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of Securities of any series
is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, the cash amount
of any sinking fund payment may be subject to reduction as provided in
Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 11.2. Satisfaction of Sinking Fund Payments with
Securities. The Company (i) may deliver Outstanding Securities of a
series (other than any previously called for redemption) together,
in the case of Bearer Securities of such series, with all unmatured
coupons appertaining thereto and (ii) may apply as a credit Securities
of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided
that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
Section 11.3. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series
pursuant to Section 11.2 and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 10.3 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 10.4. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 10.6 and 10.7.
ARTICLE 12
Subordination of Securities
---------------------------
Section 12.1. Securities Subordinated to Senior
Indebtedness. (a) The Company agrees, and each Holder of the
Securities by acceptance thereof likewise agrees, that the payment of
the principal of, premium, if any, and interest, if any, on the
Securities is subordinated, to the extent and in the manner provided
in this Article 12, to the prior payment in full of all Senior
Indebtedness of the Company.
(b) All provisions of this Article 12 shall be subject to
Section 12.14.
Section 12.2. Company Not to Make Payments with Respect to
Securities in Certain Circumstances; Limitations on Acceleration of
Securities. (a) Upon the maturity of any Senior Indebtedness of the
Company by lapse of time, acceleration or otherwise, all obligations
with respect thereto shall first be paid in full, or such payment duly
provided for in cash or in a manner satisfactory to the holders of
such Senior Indebtedness, before any payment is made on account of the
principal of, premium, if any, or interest, if any, on the Securities
or to redeem, retire, purchase, deposit moneys for the defeasance of
or acquire any of the Securities.
(b) Upon the happening of (i) any default in payment of any
Senior Indebtedness of the Company or (ii) any other default on Senior
Indebtedness of the Company and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms, then, unless
(w) such default relates to Senior Indebtedness of the Company in an
aggregate amount equal to or less than $20 million, (x) such default
shall have been cured or waived or shall have ceased to exist, (y) any
such acceleration has been rescinded, or (z) such Senior Indebtedness
has been paid in full, no direct or indirect payment in cash, property
or securities, by set-off or otherwise (except payment of the
Securities from funds previously deposited in accordance with Section
4.1 at any time such deposit was not prohibited by this Indenture),
shall be made or agreed to be made by the Company on account of the
principal of, premium, if any, or interest, if any, on the Securities,
or in respect of any redemption, retirement, purchase, deposit of
moneys for the defeasance or other acquisition of any of the
Securities in the case of such a default in Senior Indebtedness of the
Company, the Company shall not deposit money for any such payment or
distribution with the Trustee or any Paying Agent nor shall the
Company (if the Company is acting as its own Paying Agent) segregate
and hold in trust money for any such payment or distribution.
(c) Upon the happening of an event of default (other than
under circumstances when the terms of paragraph (b) of this Section
12.2 are applicable) with respect to any Senior Indebtedness of the
Company pursuant to which the holders thereof are entitled under the
terms of such Senior Indebtedness to immediately accelerate the
maturity thereof (without further notice or expiration of any
applicable grace periods), upon written notice thereof given to each
of the Company and the Trustee by the trustee for or other
representative of the holders of at least $25 million of Senior
Indebtedness of the Company (a "Payment Notice"), then, unless and
until such event of default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment in cash, property
or securities, by set-off or otherwise (except payment of the
Securities from funds previously deposited in accordance with Section
4.1 at any time such deposit was not prohibited by this Indenture),
shall be made or agreed to be made by the Company on account of the
principal of or premium, if any, or interest, if any, on the Securities,
or in respect of any redemption, retirement, purchase, deposit of moneys
for the defeasance or other acquisition of any of the Securities, and
the Company shall not deposit money for any such payment or distribution
with the Trustee or any Paying Agent nor shall the Company or a
Subsidiary (if the Company or such Subsidiary is acting as Paying
Agent) segregate and hold in trust money for any such payment or
distribution (a "Payment Block"); provided, however, that this Section
12.2(c) shall not prevent the making of any payment for more than 120
days after a Payment Notice shall have been given unless the Senior
Indebtedness in respect of which such event of default exists has been
declared due and payable in its entirety, in which case no such
payment shall be made until such acceleration has been rescinded or
annulled or such Senior Indebtedness has been paid in full in
accordance with its terms. Notwithstanding the foregoing, (i) not
more than one Payment Notice shall be given with respect to a
particular event of default (which shall not bar subsequent Payment
Notices for other such events of default), (ii) all events of default
under Senior Indebtedness occurring within any 30-day period shall be
treated as one event of default to the extent that one or more Payment
Notices are issued in connection therewith and (iii) no more than two
Payment Blocks shall be permitted within any period of 12 consecutive
months. Any payment made in contravention of the provisions of this
Section 12.2(c) shall be returned to the Company.
(d) In the event that, notwithstanding the provisions of
Section 12.2(a) or 12.2(b), the Trustee or the Holder of any Security
shall have received any payment on account of the principal of or
premium, if any, or interest, if any, on the Securities in
contravention of Section 12.2(a) or 12.2(b) or after the happening of
a default in payment of any Senior Indebtedness of the Company, or any
acceleration of the maturity of any Senior Indebtedness of the
Company, then, in either such case, except in the case of any such
default which shall have been cured or waived or shall have ceased to
exist, such payment (subject to the provisions of Sections 12.6 and
12.7) shall be held for the benefit of, and shall be paid over and
delivered to, the holders of such Senior Indebtedness of the Company
(pro rata as to each of such holders on the basis of the respective
amounts of Senior Indebtedness of the Company held by them) or their
representative or the trustee under the indenture or other agreement
(if any) pursuant to which Senior Indebtedness of the Company may have
been issued, as their respective interests may appear, for application
to the payment of all Senior Indebtedness of the Company remaining
unpaid to the extent necessary to pay all Senior Indebtedness of the
Company in full in accordance with its terms, after giving effect to
any concurrent payment or
distribution to or for the holders of Senior Indebtedness of
the Company.
(e) (1) Upon the occurrence of an Event of Default under
Section 5.1(1) through (3) and (6), the Trustee or holders of 25% of
the outstanding principal amount of the Securities of any series must
give notice of such Event of Default and the intention to accelerate
to the Company and any holders of Senior Indebtedness which have
theretofore requested of the Trustee such notice, and no acceleration
of the Securities of any series shall be effective unless and until
such Event of Default is continuing on the sixtieth day after the date
of delivery of such notice. The Company may pay the holders of the
Securities of any series any defaulted payment and all other amounts
due following any such acceleration of the maturity of the Securities
if Section 12.2(a) would not prohibit such payment to be made at that
time.
(2) Nothing in this Article 12 shall prevent or delay the
Trustee or the holders of the Securities from taking any action in
connection with the acceleration of the maturity of the Securities
pursuant to Section 5.2 upon the occurrence of an Event of Default
under either of Section 5.1(4) or 5.1(5).
(3) Except as provided in Section 12.2(e)(1), a failure to
make any payment with respect to the Securities as a result of the
rights of holders of Senior Indebtedness of the Company described in
Section 12.2(b) or 12.2(c) will not have any effect on the right of
holders of the Securities to accelerate the maturities thereof as a
result of such payment default. The Company shall give prompt written
notice to the Trustee of any default in the payment of principal of or
interest on any Senior Indebtedness of the Company, and in the event
of any such default, shall provide to the Trustee, in the form of an
Officers' Certificate, the names, addresses and respective amounts due
holders of such Senior Indebtedness or the name and address of the
trustee acting on their behalf, if any. The Trustee shall be entitled
to rely conclusively on such Officers' Certificate without independent
verification.
Section 12.3. Securities Subordinated to Prior Payment of
All Senior Indebtedness on Dissolution, Liquidation or Reorganization
of the Company. Upon the distribution of assets of the Company in any
Dissolution, winding up, liquidation (total or partial) or similar
proceeding relating to the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):
(1) the holders of all Senior Indebtedness of the Company
shall first be entitled to receive payment in full of all Senior
Indebtedness (or to have such payment duly provided for in a
manner satisfactory to them) in cash or in a manner satisfactory
to the holders of Senior Indebtedness of the Company before the
Holders of the Securities, in the case of Senior Indebtedness
of the Company, are entitled to receive any payment on account
of the principal of, premium, if any, or interest, if any, on
the Securities;
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities
(other than securities of the Company as reorganized or
readjusted or securities of the Company or any other company,
trust or corporation provided for by a plan of reorganization or
readjustment, the payment of which is junior or otherwise
subordinate, at least to the extent provided in this Article 12
with respect to the Securities, to the payment of all Senior
Indebtedness of the Company at the time outstanding and to the
payment of all securities issued in exchange therefor to the
holders of the Senior Indebtedness of the Company at the time
outstanding), to which the Holders of the Securities or the
Trustee on behalf of the Holders of the Securities would be
entitled except for the provisions of this Article 12, shall be
paid by the liquidating trustee or agent or other person making
such payment or distribution directly to the holders of the
Senior Indebtedness of the Company or their representatives or to
the trustee under any indenture under which such Senior
Indebtedness may have been issued (pro rata) as to each such
holder, representative or trustee on the basis of respective
amounts of unpaid Senior Indebtedness held or represented by
each), to the extent necessary to make payment in full of all
Senior Indebtedness of the Company remaining unpaid, after giving
effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness; and
(3) in the event that notwithstanding the foregoing
provisions of this Section 12.3, any payment or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any
other company, trust or corporation provided for by a plan of
reorganization or readjustment, the payment of which is junior or
otherwise subordinate, at least to the extent provided in this
Article 12 with respect to the Securities, to the payment of all
Senior Indebtedness of the Company at the time outstanding and to
the payment of all securities issued in exchange therefor to the
holders of the Senior Indebtedness of the Company at the time
outstanding), shall be received by the Trustee or the Holders of
the Securities on account of principal of, premium, if any, or
interest, if any, on the Securities before all Senior
Indebtedness of the Company is paid in full in cash or in a manner
satisfactory to the holders of such Senior Indebtedness in
accordance with its terms, or effective provision made for its
payment, such payment or distribution (subject to the provisions
of Sections 12.6 and 12.7) shall be received and held for the
benefit of and paid over to the holders of the Senior Indebtedness
of the Company remaining unpaid or unprovided for or their
representative, or to the trustee under any indenture under which
such Senior Indebtedness of the Company may have been issued
(pro rata as provided in paragraph (2) above), for application
to the payment of such Senior Indebtedness of the Company to the
extent necessary to pay all such Senior Indebtedness of the Company
in full in cash or in a manner satisfactory to the holders of Senior
Indebtedness of the Company, in accordance with its terms, after
giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness of
the Company.
The Company shall give prompt written notice to the Trustee
of any dissolution, winding up, liquidation or reorganization of the
Company or any assignment for the benefit of the Company's creditors
tending toward the liquidation of the business and assets of the
Company.
Section 12.4. Holders to Be Subrogated to Rights of Holders
of Senior Indebtedness. Upon the payment in full of all Senior
Indebtedness of the Company in cash or in a manner satisfactory to the
holders of such Senior Indebtedness, the Holders of the Securities
shall be subrogated equally and ratably to the rights of the holders
of Senior Indebtedness of the Company to receive payments or
distributions of assets of the Company applicable to the Senior
Indebtedness of the Company until all amounts owing on the Securities
shall be paid in full, and for the purpose of such subrogation no
payments or distributions to the holders of Senior Indebtedness of the
Company by or on behalf of the Company or by or on behalf of Holders
of the Securities by virtue of this Article 12 which otherwise would
have been made to the Holders of the Securities shall, as between the
Company and the Holders of the Securities, be deemed to be payment by
the Company to or on account of Senior Indebtedness of the Company, it
being understood that the provisions of this Article 12 are intended
solely for the purpose of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of Senior
Indebtedness of the Company, on the other hand.
Section 12.5. Obligation of the Company Unconditional.
Nothing contained in this Article 12 or elsewhere in this Indenture or
in any Security is intended to or shall impair, as between the Company
and the Holders of the Securities, the obligations of the Company, which
are absolute and unconditional, to pay to the Holders of the Securities
the principal of (and premium, if any) and interest, if any, on the
Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of
the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness of the Company, nor, except as expressly
provided in this Article 12, shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 12 of the
holders of Senior Indebtedness of the Company in respect of cash,
property or securities of the Company upon the exercise of any such
remedy. Upon any distribution of assets of the Company referred to in
this Article 12, the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities shall be entitled to rely upon
any order or decree by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization
proceedings are pending, or a certificate of the liquidating trustee
or agent or other person making any distribution to the Trustee or the
Holders of the securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Senior
Indebtedness of the Company and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article 12.
Nothing contained in this Article 12 or elsewhere in this
Indenture or in any Security is intended to or shall affect the
obligations of the Company to make, or prevent the Company from
making, at any time except during the pendency of any dissolution,
winding up, liquidation (total or partial) or similar proceeding, and
except during the continuance of any event specified in Section 12.2
(not cured or waived), payments at any time of the principal of (or
premium, if any) or interest, if any, on the Securities.
Section 12.6. Knowledge of Trustee. Notwithstanding any
provision of this Indenture, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee
until three Business Days after a Responsible Officer of the Trustee
on behalf of the Trustee shall have received at the Corporate Trust
Office of the Trustee written notice thereof from the Company, any
Holder, or the holder or representative of any class of Senior
Indebtedness of the Company identifying the specific sections of this
Indenture involved and describing in detail the facts that would
obligate the Trustee to withhold payments to Holders of Securities,
and prior to such time, the Trustee, subject to the provisions of
Section 6.1, shall be entitled in all respects conclusively to assume
that no such facts exist. The Trustee shall be entitled to rely on the
delivery to it of a written notice by an individual representing himself
to be a holder of Senior Indebtedness of the Company (or a trustee on
behalf of such holder) to establish that such notice has been given
by a holder of any such Senior Indebtedness or a trustee on behalf
of any such holder.
In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person
as a holder of Senior Indebtedness of the Company to participate in
any payment or distribution pursuant to this Article, the Trustee may
request such person to furnish evidence to the reasonable satisfaction
of the Trustee as to the amount of Senior Indebtedness of the Company
held by such person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such
person pending judicial determination as to the right of such person
to receive such payment.
Section 12.7. Application by Trustee of Moneys Deposited
with It. If two Business Days prior to the date on which by the terms
of this Indenture any moneys deposited with the Trustee or any Paying
Agent (other than the Company or a Subsidiary) may become payable for
any purpose (including, without limitation, the payment of the
principal of, premium, if any, or interest, if any, on any Security)
the Trustee shall not have received with respect to such moneys the
notice provided for in Section 12.6, then the Trustee shall have full
power and authority to receive such monies and to apply the same to
the purpose for which they were received and shall not be affected by
any notice to the contrary which may be received by it on or after
such date. This Section 12.7 shall be construed solely for the
benefit of the Trustee and Paying Agent and shall not otherwise affect
the rights of holders of such Senior Indebtedness.
Section 12.8. Subordination Rights Not Impaired by Acts or
Omissions of Company or Holders of Senior Indebtedness. No right of
any present or future holders of any Senior Indebtedness of the
Company to enforce subordination as provided herein shall at any time
in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act by any such
holder, or by any noncompliance by the Company with the terms of this
Indenture, regardless of any knowledge thereof which any such holder
may have or be otherwise charged with.
Section 12.9. Holders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of the Securities by his
acceptance thereof authorizes and expressly directs the Trustee on
such Holder's behalf to take such action as may be necessary or
appropriate in the discretion of the Trustee to effectuate the
subordination provided in this Article 12 and appoints the Trustee
such Holder's attorney in-fact for such purpose, including, without
limitation, in the event of any dissolution, winding up, liquidation
or reorganization of the Company (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business
and assets of the Company, the timely filing of a claim for the unpaid
balance of such Holder's Securities in the form required in said
proceedings. If the Trustee does not file a proper claim or proof of
debt in the form required in such proceedings before the expiration of
the time to file such claim or claims, then the holders of Senior
Indebtedness of the Company are hereby authorized to have the right to
file and are hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Securities.
Section 12.10. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article 12 in respect of any Senior Indebtedness of the Company at any
time held by it to the same extent as any other holder of such Senior
Indebtedness of the Company, and nothing in this Indenture shall be
construed to deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article 12, and
no implied covenants or obligations with respect to the holders of
Senior Indebtedness of the Company shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the Company,
and the Trustee shall not be liable to any holder of Senior
Indebtedness of the Company if it shall mistakenly pay over or deliver
to Holders of Securities, the Company or any other Person moneys or
assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article 12 or otherwise.
Section 12.11. Article 12 Not to Prevent Events of Default.
The failure to make a payment on account of principal or interest by
reason of any provision in this Article 12 shall not be construed as
preventing the occurrence of an Event of Default under Section 5.1.
Section 12.12. Paying Agents Other Than the Trustee. In
case at any time any Paying Agent (including, without
limitation, the Company or any Subsidiary) other than the Trustee
shall have been appointed by the Company and be then acting hereunder,
the term "Trustee" as used in this Article 12 shall in such case
(unless the context shall otherwise require) be construed as extending
to and including such Paying Agent (except the Company and its
subsidiaries in the case of Sections 12.6 and 12.7) within its meaning
as fully for all intents and purposes as if such Paying Agent were
named in this Article 12 in addition to or in place of the Trustee.
Section 12.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article 12 shall apply to amounts due to the Trustee
pursuant to Section 6.9.
Section 12.14. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from money held in trust under Article 4 by the Trustee for the
payment of principal of, premium if any, and interest, if any, on the
Securities shall not be subordinated to the prior payment of any
Senior Indebtedness of the Company or subject to the restrictions set
forth in this Article 12 and none of the Holders shall be obligated to
pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
Section 12.15. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the
Company referred to in this Article Twelve, the Trustee and the
Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or
other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Twelve.
Section 12.16. Trustee Not Fiduciary for Holders or Senior
Indebtedness of the Company. The Trustee shall not be deemed to owe
any fiduciary duty to the Holders of any Senior Indebtedness and shall
not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the
Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness of the Company shall be entitled by
virtue of this Article Twelve or otherwise. The Trustee shall not be
charged with knowledge of the existence of Senior Indebtedness of the
Company or of any facts that would prohibit any payment hereunder unless
a Responsible Officer of the Trustee shall have received notice to that
effect at the address of the Trustee, provided that the Trustee shall
be deemed to have knowledge of the existence of any Senior
Indebtedness to which it acts as Trustee. With respect to the holders
of Senior Indebtedness of the Company, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article Twelve and no implied covenants
or obligations with respect to holders of Senior Indebtedness of the
Company shall be read into this Indenture against the Trustee.
_______________________
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the day and year first
above written.
UAL CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
---------------------
Title: Senior Vice President
and Chief Financial Officer
Attest:
/s/ Xxxxxxxxx X. Xxxxx
----------------------
Title: Corporate Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By:/s/ Xxxxxxx X. Xxxxxxx
----------------------
Title: Vice President
Attest:
/s/ Xxxxxx Xxxxxx
-----------------
Title: Assistant Vice President
