Exhibit 4.1
EXECUTION COPY
XXXXX-ILLINOIS, INC.,
as Issuer
and
THE BANK OF NEW YORK
as Trustee
--------------------
INDENTURE
dated as of May 20, 1998
--------------------
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE............................................................1
Section 1.01. Certain Definitions............................................................................1
Section 1.02. Other Definitions..............................................................................4
Section 1.03. Incorporation by Reference of Trust Indenture Act..............................................5
Section 1.04. Rules of Construction..........................................................................5
ARTICLE 2. THE SECURITIES........................................................................................5
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating.......................................5
Section 2.02. Execution and Authentication...................................................................8
Section 2.03. Registrar and Paying Agent.....................................................................8
Section 2.04. Paying Agent to Hold Money in Trust............................................................8
Section 2.05. Securityholder Lists...........................................................................9
Section 2.06. Transfer and Exchange..........................................................................9
Section 2.07. Replacement Securities........................................................................10
Section 2.08. Outstanding Securities........................................................................10
Section 2.09. Temporary Securities..........................................................................10
Section 2.10. Cancellation..................................................................................11
Section 2.11. Defaulted Interest............................................................................11
Section 2.12. Special Record Dates..........................................................................11
Section 2.13. Global Securities.............................................................................12
Section 2.14. CUSIP Numbers.................................................................................13
ARTICLE 3. REDEMPTION...........................................................................................13
Section 3.01. Notices to Trustee............................................................................13
Section 3.02. Selection of Securities to Be Redeemed........................................................14
Section 3.03. Notice of Redemption..........................................................................14
Section 3.04. Effect of Notice of Redemption................................................................15
Section 3.05. Deposit of Redemption Price...................................................................15
Section 3.06. Securities Redeemed in Part...................................................................15
ARTICLE 4. COVENANTS............................................................................................15
Section 4.01. Payment of Securities.........................................................................15
Section 4.02. Maintenance of Office or Agency...............................................................16
Section 4.03. Commission Reports............................................................................16
Section 4.04. Compliance Certificate........................................................................17
Section 4.05. Taxes.........................................................................................17
Section 4.06. Stay, Extension and Usury Laws................................................................17
Section 4.07. Corporate Existence...........................................................................17
Section 4.08. Calculation of Original Issue Discount........................................................18
ARTICLE 5. SUCCESSORS...........................................................................................18
Section 5.01. When Company May Merge, etc...................................................................18
Section 5.02. Successor Corporation Substituted.............................................................18
ARTICLE 6. DEFAULTS AND REMEDIES................................................................................19
Section 6.01. Events of Default.............................................................................19
Section 6.02. Acceleration..................................................................................20
Section 6.03. Other Remedies................................................................................21
Section 6.04. Waiver of Past Defaults.......................................................................21
Section 6.05. Control by Majority...........................................................................21
Section 6.06. Limitation on Suits...........................................................................21
Section 6.07. Rights of Holders to Receive Payment..........................................................22
Section 6.08. Collection Suit by Trustee....................................................................22
Section 6.09. Trustee May File Proofs of Claim..............................................................22
Section 6.10. Priorities....................................................................................23
Section 6.11. Undertaking for Costs.........................................................................23
ARTICLE 7. TRUSTEE 24
Section 7.01. Duties of Trustee.............................................................................24
Section 7.02. Rights of Trustee.............................................................................25
Section 7.03. Individual Rights of Trustee..................................................................26
Section 7.04. Trustee's Disclaimer..........................................................................26
Section 7.05. Notice of Defaults............................................................................26
Section 7.06. Reports by Trustee to Holders.................................................................26
Section 7.07. Compensation and Indemnity....................................................................27
Section 7.08. Replacement of Trustee........................................................................27
Section 7.09. Successor Trustee by Merger, etc..............................................................29
Section 7.10. Eligibility; Disqualification.................................................................29
Section 7.11. Preferential Collection of Claims Against Company.............................................29
ARTICLE 8. SATISFACTION AND DISCHARGE; DEFEASANCE...............................................................29
Section 8.01. Satisfaction and Discharge of Indenture.......................................................29
Section 8.02. Application of Trust Funds; Indemnification...................................................30
Section 8.03. Legal Defeasance of Securities of any Series..................................................31
Section 8.04. Covenant Defeasance...........................................................................33
Section 8.05. Repayment to Company..........................................................................34
ARTICLE 9. SUPPLEMENTS, AMENDMENTS AND WAIVERS..................................................................34
Section 9.01. Without Consent of Holders....................................................................34
ii
Section 9.02. With Consent of Holders.......................................................................35
Section 9.03. Revocation and Effect of Consents.............................................................36
Section 9.04. Notation on or Exchange of Securities.........................................................36
Section 9.05. Trustee to Sign Amendments, etc...............................................................36
ARTICLE 10. MISCELLANEOUS.......................................................................................36
Section 10.01. Indenture Subject to Trust Indenture Act....................................................36
Section 10.02. Notices.....................................................................................37
Section 10.03. Communication By Holders With Other Holders.................................................38
Section 10.04. Certificate and Opinion as to Conditions Precedent..........................................38
Section 10.05. Statements Required in Certificate or Opinion...............................................38
Section 10.06. Rules by Trustee and Agents.................................................................38
Section 10.07. Legal Holidays..............................................................................39
Section 10.08. No Recourse Against Others..................................................................39
Section 10.09. Counterparts................................................................................39
Section 10.10. Governing Law..............................................................................39
Section 10.11. Severability...............................................................................39
Section 10.12. Effect of Headings, Table of Contents, etc.................................................39
Section 10.13. Successors and Assigns.....................................................................39
Section 10.14. No Interpretation of Other Agreements......................................................40
iii
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
----------- -----------------
310(a)(1) .........................................................................................7.10
(a)(2) .........................................................................................7.10
(a)(3) .........................................................................................N.A.
(a)(4) .........................................................................................N.A.
(a)(5) .........................................................................................7.10
(b) ................................................................................7.03, 7.08; 7.10
(c) ............................................................................................N.A.
311(a) ............................................................................................7.11
(b) ............................................................................................7.11
(c) ............................................................................................N.A.
312(a) ............................................................................................2.05
(b)............................................................................................10.03
(c)............................................................................................10.03
313(a) ............................................................................................7.06
(b) ............................................................................................7.06
(c) .....................................................................................7.06; 10.02
(d) ............................................................................................7.06
314(a) .....................................................................................4.03; 10.02
(b) ............................................................................................N.A.
(c)(1) ........................................................................................10.04
(c)(2) ........................................................................................10.04
(c)(3) ........................................................................................N.A.
(d) ............................................................................................N.A.
(e) ...........................................................................................10.05
(f) ............................................................................................N.A.
315(a) ...............................................................................7.01(b)(ii), 7.02
(b) ...............................................................................7.02, 7.05; 10.02
(c) ...................................................................................7.01(a), 7.02
(d) ...................................................................................7.01(d), 7.02
(e) ............................................................................................6.11
316(a)(last sentence) .........................................................................2.13(f)
(a)(1)(A) ......................................................................................6.05
(a)(1)(B) .....................................................................................6.04
(a)(2) ........................................................................................N.A.
(b) ...........................................................................................6.07
(c) .....................................................................................2.12; 9.03
317(a)(1) ........................................................................................6.08
(a)(2) ........................................................................................6.09
(b) ...........................................................................................2.04
318(a) ...........................................................................................10.01
(b) ............................................................................................N.A.
(c)............................................................................................10.01
*
-------------------
N.A. means not applicable.
* This Cross-Reference Table is not part of the Indenture.
INDENTURE dated as of May 20, 1998 between Xxxxx-Illinois,
Inc., a Delaware corporation (the "Company"), and The Bank of New York, a New
York banking corporation, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness to be issued in one or more series (the
"Securities"), as herein provided, up to such principal amount as may from time
to time be authorized in or pursuant to one or more resolutions of the Board of
Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of each series of the
Securities:
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Certain Definitions.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting stock, by
agreement or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-Registrar.
"Board of Directors" means the Board of Directors of the
Company or any authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors or pursuant to authorization by the Board of Directors
and to be in full force and effect on the date of such certification (and
delivered to the Trustee, if appropriate).
"Closing Date" means the date on which the Securities of a
particular series were originally issued under this Indenture.
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such above until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
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"Company Order" means a written order signed in the name of
the Company by two Officers, one of whom must be the Company's principal
executive officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name
of the Company by its Chairman of the Board, a President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" shall mean the corporate trust office
of the Trustee, which shall initially be 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx
Xxxx, Xxx Xxxx 00000.
"Default" means any event that is, or with the passage of time
or the giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depositary for such series by the Company,
which Depositary shall be a clearing agency registered under the Exchange Act;
and if at any time there is more than one such person, "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are applicable to the circumstances as of
the Closing Date.
"Global Security" shall mean a Security issued to evidence all
or a part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to a Depositary or pursuant to such
Depositary's instructions, all in accordance with this Indenture and pursuant to
Section 2.01, which shall be registered as to principal and interest in the name
of such Depositary or its nominee.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Interest" when used with respect to an Original Issue
Discount Security that by its terms bears interest only after maturity, means
interest payable after maturity.
2
"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 Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, any Vice-President, the Treasurer, the Controller, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the principal executive officer, principal
financial officer or principal accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which
provides that an amount less than its principal amount is due and payable upon
acceleration after an Event of Default.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal" of a Security means the principal amount due on
the stated maturity of the Security plus the premium, if any, on the Security.
"Securities" means the Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"Stated Maturity" when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means any corporation, partnership or limited
liability company of which the Company, or the Company and one or more
Subsidiaries, or any one or more Subsidiaries, directly or indirectly owns or
own (i) in the case of a corporation, voting securities entitling the holders
thereof to elect a majority of the directors, either at all times or so long as
there is no default or contingency which permits the holders of any other class
of securities to vote for the election of one or more directors, (ii) in the
case of a partnership, at least a majority of the general partnership interests
and at least a majority of total outstanding partnership
3
interests or (iii) in the case of a limited liability company, at least a
majority of the membership interests.
"TIA" means the Trust Indenture Act of 1939, as amended from
time to time, and as in effect on the date of execution of this Indenture;
provided, however, that in the event the TIA is amended after such date, "TIA"
means, to the extent required by such amendment, the Trust Indenture Act, as so
amended.
"Trustee" means the party named as such above until a
successor becomes such pursuant to this Indenture and thereafter means or
includes each party who is then a trustee hereunder, and if at any time there is
more than one such party, "Trustee" as used with respect to the Securities of
any series means the Trustee with respect to Securities of that series. If
Trustees with respect to different series of Securities are trustees under this
Indenture, nothing herein shall constitute the Trustees co-trustees of the same
trust, and each Trustee shall be the trustee of a trust separate and apart from
any trust administered by any other Trustee with respect to a different series
of Securities.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America 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 of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that is not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
Section 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 10.07
"Paying Agent" 2.03
"Place of Payment" 2.01
"redemption price" 3.03
"Registrar" 2.03
4
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the Securities means the Company and any
successor obligor on the Securities.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has
the meaning assigned to it in accordance
with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural,
and in the plural include the singular; and
(v) provisions apply to successive events and
transactions.
ARTICLE 2.
THE SECURITIES
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution or an Officers' Certificate
5
pursuant to authority granted under a Board Resolution or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series:
(a) the title of the Securities of the series
(which shall distinguish the Securities of the series from all other
Securities);
(b) any limit upon the aggregate principal amount of
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to this Article 2);
(c) the price or prices (expressed as a percentage
of the aggregate principal amount thereof) at which the Securities of
the series will be issued;
(d) the date or dates on which the principal of the
Securities of the series is payable;
(e) the rate or rates that may be fixed or variable
at which the Securities of the series shall bear interest, if any, or
the manner in which such rate or rates shall be determined, the date or
dates from which such interest shall accrue, the interest payment dates
on which such interest shall be payable and the record dates for the
determination of Holders to whom interest is payable;
(f) the place or places where the principal of and
any interest on Securities of the series shall be payable, if other
than as provided herein;
(g) the price or prices at which (if any), the
period or periods within which (if any) and the terms and conditions
upon which (if other than as provided herein) Securities of the series
may be redeemed, in whole or in part, at the option, or as an
obligation, of the Company;
(h) the obligation, if any, of the Company to
redeem, purchase or repay Securities of the series, in whole or in
part, pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the price or prices at which and the
period and periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid
pursuant to such obligation;
(i) if other than denominations of $1,000 and any
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(j) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02 hereof;
6
(k) any addition to or change in the covenants set
forth in Article 4 that applies to Securities of the series;
(l) any Events of Default with respect to the
Securities of a particular series, if not set forth herein;
(m) the Trustee for the series of Securities;
(n) whether the Securities of the series shall be
issued in whole or in part in the form of a Global Security or
Securities; the terms and conditions, if any, upon which such Global
Security or Securities may be exchanged in whole or in part for other
individual Securities, and the Depositary for such Global Security and
Securities;
(o) the provisions, if any, relating to any security
provided for the Securities of the series;
(p) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture, but which
may modify or delete any provision of this Indenture with respect to
such series; provided, however, that no such term may modify or delete
any provision hereof if imposed by the TIA; and provided, further, that
any modification or deletion of the rights, duties or immunities of the
Trustee hereunder shall have been consented to in writing by the
Trustee).
All Securities of any series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution or Officers' Certificate or in any such indenture
supplemental hereto.
The principal of and any interest on the Securities shall be
payable at the office or agency of the Company designated in the form of
Security for the series (each such place herein called the "Place of Payment");
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled thereto as such
address shall appear in the register of Securities referred to in Section 2.03
hereof.
Each Security shall be in one of the forms approved from time
to time by or pursuant to a Board Resolution or Officers' Certificate, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution or Officers' Certificate, the Company shall
deliver to the Trustee the Board Resolution or Officers' Certificate by or
pursuant to which such form of Security has been approved, which Board
Resolution or Officers' Certificate shall have attached thereto a true and
correct copy of the form of Security that has been approved by or pursuant
thereto.
The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. Each Security shall be dated the
date of its authentication.
7
Section 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue
upon a Company Order.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Securities of a particular series may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities of
that series may be presented for payment (a "Paying Agent"). The Registrar for a
particular series of Securities shall keep a register of the Securities of that
series and of their transfer and exchange. The Company may appoint one or more
co-Registrars and one or more additional paying agents for each series of
Securities. The term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent, Registrar or co-Registrar without prior
notice to any Securityholder. The Company shall notify the Trustee in writing of
the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent
for any series of Securities, the Trustee shall act as such. The Company or any
of its Affiliates may act as Paying Agent, Registrar or co-Registrar.
The Company hereby appoints the Trustee the initial Registrar
and Paying Agent for each series of Securities unless another Registrar or
Paying Agent, as the case may be, is appointed prior to the time Securities of
that series are first issued.
Section 2.04. Paying Agent to Hold Money in Trust.
Whenever the Company has one or more Paying Agents it will,
prior to each due date of the principal of or interest on, any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the
8
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that such Paying Agent will hold in trust for the
benefit of the Securityholders of the particular series for which it is acting,
or the Trustee, all money held by the Paying Agent for the payment of principal
or interest on the Securities of such series, and that such Paying Agent will
notify the Trustee of any Default by the Company or any other obligor of the
series of Securities in making any such payment and 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. If
the Company or an Affiliate acts as Paying Agent, it shall segregate and hold in
a separate trust fund for the benefit of the Securityholders of the particular
series for which it is acting all money held by it as Paying Agent. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon so doing, the Paying Agent (if other than the Company or an
Affiliate of the Company) shall have no further liability for such money. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Securities.
Section 2.05. 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 Securityholders, separately by series, and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least seven business days before each interest payment
date 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 of the names
and addresses of Securityholders, separately by series, relating to such
interest payment date or request, as the case may be.
Section 2.06. Transfer and Exchange.
Where Securities of a series are presented to the Registrar or
a co-Registrar with a request to register a transfer or to exchange them for an
equal principal amount of Securities of the same series of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Securities at the Registrar's request.
No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.09, 2.13, 3.06 or 9.04).
The Company need not issue, and the Registrar or co-Registrar
need not register the transfer or exchange of, (i) any Security of a particular
series during a period beginning at the opening of business 15 days before the
day of any selection of Securities of that series for
9
redemption under Section 3.02 and ending at the close of business on the day of
selection, or (ii) any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security of that series being redeemed in
part.
Section 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of same series if the Company's and the Trustee's
requirements are met. The Trustee or the Company may require an indemnity bond
to be furnished which is sufficient in the judgment of both to protect the
Company, the Trustee, and any Agent from any loss which any of them may suffer
if a Security is replaced. The Company may charge such Holder for its expenses
in replacing a Security.
Every replacement Security is an obligation of the Company and
shall be entitled to all the benefit of the Indenture equally and
proportionately with any and all other Securities of the same series.
Section 2.08. Outstanding Securities.
The Securities of any series outstanding at any time are all
the Securities of that series authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they
cease to be outstanding and interest on them ceases to accrue.
Except as set forth in Section 2.09 hereof, a Security does
not cease to be outstanding because the Company or an Affiliate holds the
Security.
For each series of Original Issue Discount Securities, the
principal amount of such Securities that shall be deemed to be outstanding and
used to determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination. When
requested by the Trustee, the Company shall advise the Trustee of such amount,
showing its computations in reasonable detail.
Section 2.09. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities upon
a written order of the Company signed
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by one Officer of the Company. Temporary Securities shall be substantially in
the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
in exchange for temporary Securities.
Holders of temporary securities shall be entitled to all of
the benefits of this Indenture.
Section 2.10. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall return such
canceled Securities to the Company at the Company's written request. The Company
may not issue new Securities to replace Securities that it has paid or that have
been delivered to the Trustee for cancellation.
Section 2.11. Defaulted Interest.
If the Company fails to make a payment of interest on any
series of Securities, it shall pay such defaulted interest plus (to the extent
lawful) any interest payable on the defaulted interest, in any lawful manner. It
may elect to pay such defaulted interest, plus any such interest payable on it,
to the Persons who are Holders of such Securities on which the interest is due
on a subsequent special record date. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each such
Security. The Company shall fix any such record date and payment date for such
payment. At least 15 days before any such record date, the Company shall mail to
Securityholders affected thereby a notice that states the record date, payment
date, and amount of such interest to be paid.
Section 2.12. Special Record Dates.
(a) The Company may, but shall not be obligated to,
set a record date for the purpose of determining the identity of
Holders entitled to consent to any supplement, amendment or waiver
permitted by this Indenture. If a record date is fixed, the Holders of
Securities of that series outstanding on such record date, and no other
Holders, shall be entitled to consent to such supplement, amendment or
waiver or revoke any consent previously given, whether or not such
Holders remain Holders after such record date. No consent shall be
valid or effective for more than 90 days after such record date unless
consents from Holders of the principal amount of Securities of that
series required hereunder for such amendment or waiver to be effective
shall have also been given and not revoked within such 90-day period.
(b) The Company may, but shall not be obligated to,
fix any day as a record date for the purpose of determining the Holders
of any series of Securities entitled to join in the giving or making of
any notice of Default, any declaration of acceleration,
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any request to institute proceedings or any other similar direction.
If a record date is fixed, the Holders of Securities of that series
outstanding on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date;
provided, however, that no such action shall be effective hereunder
unless taken on or prior to the date 90 days after such record date.
Section 2.13. Global Securities.
(a) Terms of Securities. A Board Resolution, a
supplemental indenture hereto or an Officers' Certificate shall
establish whether the Securities of a series shall be issued in whole
or in part in the form of one or more Global Securities and the
Depositary for such Global Security or Securities.
(b) Transfer and Exchange. Notwithstanding any
provisions to the contrary contained in Section 2.06 of this Indenture
and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.06 of this Indenture for securities registered in
the names of Holders other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security
or if at any time such Depositary ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company
fails to appoint a successor Depositary within 90 days of such event or
(ii) the Company executes and delivers to the Trustee an Officers'
Certificate to the effect that such Global Security shall be so
exchangeable. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in
such names as the Depositary shall direct in writing in an aggregate
principal amount equal to the principal amount of the Global Security
with like tenor and terms.
Except as provided in this paragraph (b) of this
Section, a Global Security may not be transferred except as a whole by
the Depositary with respect to such Global Security to a nominee of
such Depositary, by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor
Depositary.
(c) Legend. Any Global Security issued hereunder
shall bear a legend in substantially the following form:
"Unless this certificate is presented by an
authorized representative of The Depository Trust Company, a
New York corporation ("DTC"), New York, New York, to the
issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name
of Cede & Co. or such other name as may be requested by an
authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as may be requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
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WRONGFUL inasmuch as the registered owner hereof, Cede & Co.
has an interest herein."
"Transfer of this Global Security shall be limited to
transfers in whole, but not in part, to nominees of DTC or to
a successor thereof or such successor's nominee and limited to
transfers made in accordance with the restrictions set forth
in the Indenture referred to herein."
(d) Acts of Holders. The Depositary, as a Holder, may
appoint agents and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action which a Holder is entitled to give or take under this
Indenture.
(e) Payments. Notwithstanding the other provisions of
this Indenture, unless otherwise specified as contemplated by Section
2.01 hereof, payment of the principal of and interest, if any, on any
Global Security shall be made to the Person specified therein.
(f) Consents, Declaration and Directions. Except as
provided in paragraph (e) of this Section, the Company, the Trustee and
any Agent shall treat a Person as the Holder of such principal amount
of outstanding Securities of such series represented by a Global
Security as shall be specified in a written statement of the Depositary
with respect to such Global Security, for purposes of obtaining any
consents, declarations or directions required to be given by the
Holders pursuant to this Indenture.
Section 2.14. CUSIP Numbers.
The Company in issuing any series of Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on such Securities or as contained in any notice and
that reliance may be placed only on the other identification numbers printed on
such Securities, and any such action relating to such notice shall not be
affected by any defect in or omission of such numbers in such notice. The
Company shall promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3.
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Securities of any series
pursuant to any optional redemption provisions thereof, it shall notify the
Trustee of the redemption date and the principal amount of Securities of that
series to be redeemed.
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The Company shall give the notice provided for in this Section
at least 45 days before the redemption date (unless a shorter notice period
shall be satisfactory to the Trustee), which notice shall specify the provisions
of such Security pursuant to which the Company elects to redeem such Securities.
If the Company elects to reduce the principal amount of
Securities of any series to be redeemed pursuant to mandatory redemption
provisions thereof, it shall notify the Trustee of the amount of, and the basis
for, any such reduction. If the Company elects to credit against any such
mandatory redemption Securities it has not previously delivered to the Trustee
for cancellation, it shall deliver such Securities with such notice.
Section 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed, the Trustee shall select the Securities of that series to be redeemed
by a method that complies with the requirements of any exchange on which the
Securities of that series are listed, or, if the Securities of that series are
not listed on an exchange, by lot or by such other method as the Trustee deems
appropriate. The Trustee shall make the selection not more than 75 days and not
less than 30 days before the redemption date from Securities of that series
outstanding and not previously called for redemption. Except as otherwise
provided as to any particular series of Securities, Securities and portions
thereof that the Trustee selects shall be in amounts equal to the minimum
authorized denomination for Securities of the series to be redeemed or any
integral multiple thereof. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly in writing of the
Securities or portions of Securities to be called for redemption.
Section 3.03. Notice of Redemption.
Except as otherwise provided as to any particular series of
Securities, at least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption to each Holder whose Securities
are to be redeemed.
The notice shall identify the Securities of the series to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms
of the Securities of the series to be redeemed, plus accrued interest,
if any, to the date fixed for redemption (the "redemption price");
(3) if any Security is being redeemed in part, the portion
of the principal amount of such Security to be redeemed and that, after
the redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued;
(4) the name and address of the Paying Agent;
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(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the
redemption price, interest on Securities called for redemption ceases
to accrue on and after the redemption date; and
(7) the CUSIP number, if any, of the Securities to be
redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense. The notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice of the Holder of any Security
shall not affect the validity of the proceeding for the redemption of any other
Security.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the Redemption Price.
Section 3.05. Deposit of Redemption Price.
On or before 10:00 a.m. New York City time on the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or any
Affiliate is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of all Securities called for redemption
on that date other than Securities that have previously been delivered by the
Company to the Trustee for cancellation. The Paying Agent shall return to the
Company any money not required for that purpose.
Section 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Security of same series equal in principal amount
to the unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay or cause to be paid the principal of and
interest on the Securities on the dates and in the manner provided in this
Indenture and the Securities. Principal and interest shall be considered paid on
the date due if the Paying Agent, if other than the
15
Company or an Affiliate, holds as of 10:00 a.m. New York City time on that date
immediately available funds designated for and sufficient to pay all principal
and interest then due.
To the extent lawful, the Company shall pay interest on
overdue principal and overdue installments of interest at the rate per annum
borne by the applicable series of Securities.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee or Registrar) where Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of 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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities 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 the Borough of Manhattan, The City of New York for such purposes. The Company
shall 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.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03. Commission Reports.
The Company shall deliver to the Trustee within 15 days after
it files them 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 by rules and regulations prescribe) that the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act; provided, however the Company shall not be required to
deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. The Company also shall comply
with the other provisions of TIA Section 314(a).
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).
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Section 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, commencing within 120 days of
December 31, 1998, an Officers' Certificate stating that in the course of the
performance by the signers of their duties as officers of the Company, they
would normally have knowledge of any failure by the Company to comply with all
conditions, or default by the Company with respect to any covenants, under this
Indenture, and further stating whether or not they have knowledge of any such
failure or default and, if so, specifying each such failure or default and the
nature thereof. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided for in this Indenture. The certificate need not comply with Section
10.04 hereof.
The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto.
Section 4.05. Taxes.
The Company shall pay prior to delinquency, all material
taxes, assessments, and governmental levies except as contested in good faith by
appropriate proceedings.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Company
and its Subsidiaries; provided, however, that the Company shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
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Section 4.08. Calculation of Original Issue Discount.
If, as of the end of any fiscal year of the Company, the
Company has any outstanding Original Issue Discount Securities under the
Indenture, the Company shall file with the Trustee promptly following the end of
such fiscal year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on such Original
Issue Discount Securities as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
required under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE 5.
SUCCESSORS
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving corporation), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the
Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made is a
corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia;
(2) the Person formed by or assuming any such
consolidation or merger (if other than the Company) or the Person to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes by supplemental indenture all
the obligations of the Company under the Securities and this Indenture;
and
(3) immediately prior to and after giving effect to
the transaction no Default or Event of Default shall have occurred and
be continuing.
The Company shall deliver to the Trustee on or prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer by the
Company (other than by lease) of all or substantially all of the assets of the
Company in accordance with Section 5.01 hereof, the successor corporation formed
by such consolidation or into which the Company is merged or to which such
transfer is made shall succeed to, and be substituted for, and may
18
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein. In the event of any such transfer, the predecessor Company shall be
released and discharged from all liabilities and obligations in respect of the
Securities and the Indenture, and the predecessor Company may be dissolved,
wound up or liquidated at any time thereafter.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs with respect to Securities of any
particular series if, unless in the establishing Board Resolution, Officers'
Certificate or supplemental indenture hereto, it is provided that such series
shall not have the benefit of said Event of Default:
(1) the Company defaults in the payment of interest
on any Security of that series when the same becomes due and payable
and the Default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of any Security of that series when the same becomes due and
payable at maturity, upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities
of that series, occurs and is continuing, or the Company fails to
comply with any of its other agreements in the Securities of that
series or in this Indenture with respect to that series and the Default
continues for the period and after the notice specified below;
(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;
(D) makes a general assignment for the
benefit of its creditors; or
(E) admits in writing its inability
generally to pay its debts as the same become due.
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(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 or
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 60 days.
(6) any other Event of Default provided with respect
to Securities of that series which is specified in a Board Resolution,
Officers' Certificate or supplemental indenture establishing that
series of Securities.
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.
A Default under clause (3) above is not an Event of Default
with respect to a particular series of Securities until the Trustee or the
Holders of at least 50% in principal amount of the then outstanding Securities
of that series notify the Company of the Default and the Company does not cure
the Default within 60 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a "Notice
of Default." Such notice shall be given by the Trustee if so requested in
writing by the Holders of 50% of the principal amount of the then outstanding
Securities of that series.
Section 6.02. Acceleration.
If an Event of Default with respect to Securities of any
series (other than an Event of Default specified in clauses (4) and (5) of
Section 6.01) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 50% in principal amount of the then outstanding
Securities of that series by notice to the Company and the Trustee, may declare
the unpaid principal (or, in the case of Original Issue Discount Securities,
such lesser amount as may be provided for in such Securities) of and any accrued
interest on all the Securities of that series to be due and payable on the
Securities of that series. Upon such declaration the principal (or such lesser
amount) and interest shall be due and payable immediately. If an Event of
Default specified in clause (4) or (5) of Section 6.01 occurs, all of such
amount shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder. The Holders of a majority
in principal amount of the then outstanding Securities of that series by notice
to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default with respect to that series have been cured or waived except
nonpayment of principal (or such lesser amount) or interest that has become due
solely because of the acceleration.
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Section 6.03. Other Remedies.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal or interest on the Securities of that series or
to enforce the performance of any provision of the Securities of that series or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Subject to Section 9.02, the Holders of a majority in
principal amount of the then outstanding Securities of any series, by notice to
the Trustee, may waive an existing Default or Event of Default with respect to
that series and its consequences except a Default or Event of Default in the
payment of the principal (including any mandatory sinking fund or like payment)
of or interest on any Security of that series (provided, however, that the
Holders of a majority in principal amount of the outstanding Securities of any
series may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration).
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the then
outstanding Securities of any series may direct the time, method and place of
conducting any proceeding for any remedy with respect to that series available
to the Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that is unduly prejudicial to the rights of another Holder of
Securities of that series, or that may involve the Trustee in personal
liability. The Trustee may take any other action which it deems proper that is
not inconsistent with any such direction.
Section 6.06. Limitation on Suits.
A Holder of Securities of any series may not pursue a remedy
with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of
a continuing Event of Default with respect to that series;
(2) the Holders of at least 50% in principal amount
of the then outstanding Securities of that series make a written
request to the Trustee to pursue the remedy;
21
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(5) during such 60-day period the Holders of a
majority in principal amount of the then outstanding Securities of that
series do not give the Trustee a direction inconsistent with the
request.
No Holder of any series of Securities may use this Indenture to prejudice the
rights of another Holder of Securities of that series or to obtain a preference
or priority over another Holder of Securities of that series.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal of and
interest, if any, on the Security, on or after the respective due dates
expressed in the Security, or 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 the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2)
hereof occurs and is continuing with respect to Securities of any series, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of principal (or such portion of the
principal as may be specified as due upon acceleration at that time in the terms
of that series of Securities) and interest, if any, remaining unpaid on the
Securities of that series then outstanding, together with (to the extent lawful)
interest on overdue principal and interest, and such further amount as shall be
sufficient to cover the costs and, to the extent lawful, expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07 hereof.
Section 6.09. 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 Securityholders allowed in any judicial proceedings relative to
the Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled to and empowered to collect and receive any money
or other property payable or deliverable on any such claims and to distribute
the same, and any custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
22
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing contained herein shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money with respect to Securities
of any series pursuant to this Article, it shall pay out the money in the
following order:
First: to the Trustee, its agents and attorneys
for amounts due under Section 7.07 hereof,
including payment of all compensation,
expense and liabilities incurred, and all
advances made, by the Trustee and the
costs and expenses of collection;
Second: to Securityholders for amounts due and
unpaid on the Securities of such series
for principal and interest, ratably,
without preference or priority of any
kind, according to the amounts due and
payable on the Securities of such series
for principal and interest, respectively;
and
Third: to the Company or to such party as a court
of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Securities of any series pursuant to this Section. The
Trustee shall notify the Company in writing reasonably in advance of any such
record date and payment date.
Section 6.11. 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 or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defense made by
the party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 hereof or a suit by Holders of more than
10% in principal amount of the then outstanding Securities of any series.
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ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default known to the Trustee:
(i) the duties of the Trustee shall be
determined solely by the express provisions
of this Indenture or the TIA and the Trustee
need perform only those duties that are
specifically set forth in this Indenture or
the TIA and no others, and no implied
covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may 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. However, in the case of
any certificates or opinions which by any
provision hereof are specifically required
to be furnished to the Trustee, the Trustee
shall examine the certificates and opinions
to determine whether or not they conform to
the requirements of this Indenture (but need
not confirm or investigate the accuracy of
mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liabilities
for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a
responsible officer of the Trustee, unless
it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
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(iii) the Trustee shall not be liable with
respect to any action it takes or omits to
take in good faith in accordance with a
direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The
Trustee may refuse to perform any duty or exercise any right or power
unless it receives security and indemnity satisfactory to it against
any loss, liability or expense.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in writing
with the Company. Absent written instruction from the Company, the
Trustee shall not be required to invest any such money. Money held in
trust by the Trustee need not be segregated from other funds except to
the extent required by law.
Section 7.02. Rights of Trustee.
Subject to TIA Section 315(a) through (d):
(a) The Trustee may conclusively rely on any document
believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel, or
both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through agents and shall not
be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) 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 under the Indenture, unless the
Trustee's conduct constitutes negligence.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Officer of the Company.
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(f) The Trustee may consult with counsel of its
selection and may rely upon the advice of such counsel or any Opinion
of Counsel.
(g) The Trustee shall not be deemed to have notice of
any Default or Event of Default unless a Trust Officer of the Trustee
has actual knowledge thereof or unless written notice of any event that
is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities
generally or the Securities of a particular series, as the case may be,
and this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to TIA
Sections 310(b) and 311.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to all Holders of Securities of that series a
notice of the Default or Event of Default within 90 days after it occurs. Except
in the case of a Default or Event of Default in payment on any such Security,
the Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of such Securityholders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after May 15 in each year, the Trustee with
respect to any series of Securities shall mail to Holders of Securities of that
series as provided in TIA Section 313(c) a brief report dated as of such May 15
that complies with TIA Section 313(a) (if such report is required by TIA Section
313(a)). The Trustee shall also comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the Commission and
each stock exchange on which any of the Securities are listed, as required by
TIA Section 313(d). The Company shall notify the Trustee when the Securities are
listed on any stock exchange, and of any delisting thereof.
26
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing for its services hereunder. The
Company shall reimburse the Trustee upon written request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents and
counsel.
The Company shall indemnify each of the Trustee or any
predecessor Trustee for any loss, liability, damage, claims or expenses,
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, in connection with the acceptance or administration of this Indenture and
its duties 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.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee in its capacity as Trustee, except money or
property held in trust to pay principal and interest on particular Securities.
Such lien will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(4) or (5) hereof occurs, the expenses
and the compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
This Section 7.07 shall survive the termination of this
Indenture.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee with respect to one or
more or all series of Securities and appointment of a successor Trustee shall
become effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all
series of Securities by so notifying the Company in writing. The Holders of a
majority in principal amount of the then outstanding Securities of any series
may remove the Trustee as to that series by so notifying the Trustee in writing
and may appoint a successor Trustee with the Company's consent. The Company may
remove the Trustee with respect to one or more or all series of Securities if:
(1) the Trustee fails to comply with Section
7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
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(3) a receiver or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the
Company shall promptly appoint a successor Trustee for that series. Within one
year after the successor Trustee with respect to any series takes office, the
Holders of a majority in principal amount of the then outstanding Securities of
that series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company. If a successor Trustee as to a particular series does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company or the Holders of at least 10% in principal
amount of the then outstanding Securities of that series may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof with
respect to any series, any Holder of Securities of that series who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for that series.
A successor Trustee as to any series of Securities shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after that, the retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee (subject to
the lien provided for in Section 7.07 hereof), the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture as to that
series. The successor Trustee shall mail a notice of its succession to the
Holders of Securities of that series.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring trustee.
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 each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and that (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
shall contain such provisions as shall be 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 (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
or desirable to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; provided, however, that nothing herein or in
such supplemental Indenture shall constitute such Trustee co-trustees of the
same trust and that each
28
such Trustee shall be trustee of a trust hereunder separate and apart from any
trust hereunder administered by any other such Trustee.
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.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee as to any series of Securities consolidates,
merges or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, the successor corporation without any
further act shall be the successor Trustee as to that series.
Section 7.10. Eligibility; Disqualification.
Each series of Securities shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee as
to any series of Securities shall always have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated
and delivered (other than Securities that have been
destroyed, lost or stolen and that have been replaced
or paid) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore
delivered to the Trustee for cancellation
29
(1) have become due and payable, or
(2) will become due and payable at
their stated maturity within one year, or
(3) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in
the name, and at the expense, of the
Company, or
(4) are deemed paid and discharged
pursuant to Section 8.03, as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust an
amount sufficient for the purpose of paying and discharging the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and interest to the date of
such deposit (in the case of Securities that have become due and
payable on or prior to the date of such deposit) or to the stated
maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 hereof, and, if
money shall have been deposited with the Trustee pursuant to clause (a) of this
Section or if money or obligations shall have been deposited with or received by
the Trustee pursuant to Section 8.03 hereof, the obligations of the Trustee
under Sections 8.02 and 8.05 hereof shall survive.
Section 8.02. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.05 hereof,
all money deposited with the Trustee pursuant to Section 8.01 hereof,
all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 8.03 or 8.04 hereof and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the
Trustee pursuant to Section 8.03 or 8.04 hereof, shall be held in trust
and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund
payments or analogous payments as contemplated by Sections 8.03 and
8.04 hereof.
30
(b) The Company shall pay and shall indemnify the
Trustee against any tax, fee or other charge imposed on or assessed
against U.S. Government Obligations deposited pursuant to Sections 8.03
or 8.04 hereof or the interest and principal received in respect of
such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company
from time to time upon Company Request any U.S. Government Obligations
or money held by it as provided in Sections 8.03 or 8.04 hereof that,
in the opinion of a nationally recognized firm of independent certified
public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof
which then would have been required to be deposited for the purpose for
which such U.S. Government Obligations or money were deposited or
received. This provision shall not authorize the sale by the Trustee of
any U.S. Government Obligations held under this Indenture.
Section 8.03. Legal Defeasance of Securities of any Series.
Unless this Section 8.03 is otherwise specified to be
inapplicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the outstanding Securities of
any such series on the 91st day after the date of the deposit referred to in
subparagraph (d) hereof, and the provisions of this Indenture, as it relates to
such outstanding Securities of such series, shall no longer be in effect (and
the Trustee, at the expense of the Company, shall, upon Company Request, execute
proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities of such
series to receive, from the trust funds described in subparagraph (d)
hereof, (i) payment of the principal of an each installment of
principal of or interest on the outstanding Securities of such series
on the stated maturity of such principal of or interest and (ii) the
benefit of any mandatory sinking fund payments applicable to the
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and the
Securities of such series;
(b) the Company's obligations with respect to such
Securities of such series under Sections 2.03, 2.06 and 2.07 hereof;
and
(c) the rights, powers, trust and immunities of the
Trustee hereunder and the duties of the Trustee under Section 8.02
hereof and the duty of the Trustee to authenticate Securities of such
series issued on registration of transfer of exchange;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for and dedicated solely to the benefit of the Holders of such
Securities, cash in U.S. Dollars and/or U.S. Government
31
Obligations which through the payment of interest and principal in
respect thereof, in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on
such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge each installment of principal (including mandatory
sinking fund or analogous payments) of and interest, if any, on all
the Securities of such series on the dates such installments of
interest or principal are due;
(e) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party
or by which it is bound;
(f) no Default or Event of Default with respect to
the Securities of such series shall have occurred and be continuing on
the date of such deposit or during the period ending on the 91st day
after such date;
(g) 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 of Counsel shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount
and in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the Trustee
an Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Securities of
such series over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(i) such deposit shall not result in the trust
arising from such deposit constituting an investment company (as
defined in the Investment Company Act of 1940, as amended), or such
trust shall be qualified under such Act or exempt from regulation
thereunder; and
(j) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.
32
Section 8.04. Covenant Defeasance.
Unless this Section 8.04 is otherwise inapplicable to
Securities of any series, on and after the 91st day after the date of the
deposit referred to in subparagraph (a) hereof, the Company may omit to comply
with any term, provision or condition set forth under Sections 4.03, 4.04, 4.05,
4.06, 4.07, 4.08 and 5.01 hereof as well as any additional covenants contained
in a supplemental indenture hereto for a particular series of Securities or a
Board Resolution or an Officers' Certificate delivered pursuant to Section
2.01(n) hereof (and the failure to comply with any such provisions shall not
constitute a Default or Event of Default under Section 6.01 hereof) and the
occurrence of any event described in clause (e) of Section 6.01 hereof shall not
constitute a Default or Event of Default hereunder, with respect to the
Securities of such series, provided that the following conditions shall have
been satisfied:
(a) With reference to this Section 8.04, the Company
has deposited or caused to be irrevocably deposited (except as provided
in Section 8.03 hereof) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, cash in U.S. Dollars and/or
U.S. Government Obligations which through the payment of interest and
principal in respect thereof, in accordance with their terms, will
provide (and without reinvestment and assuming no tax liability will be
imposed on such Trustee), not later than one day before the due date of
any payment of money, an amount in cash, 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 principal and interest, if any, on and any
mandatory sinking fund in respect of the Securities of such series on
the dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or 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 with respect to
the Securities of such series shall have occurred and be continuing on
the date of such deposit or during the period ending on the 91st day
after such date;
(d) The Company shall have delivered to the Trustee
an Opinion of Counsel confirming that Holders of the Securities of such
series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and defeasance 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 deposit and
defeasance had not occurred;
(e) The Company shall have delivered to the Trustee
an Officers' Certificate stating the deposit was not made by the
Company with the intent of preferring the Holders of the Securities of
such series over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
33
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.
Section 8.05. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon
the Company's request any money held by them for the payment of principal or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person.
ARTICLE 9.
SUPPLEMENTS, AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company and the Trustee as to any series of Securities may
supplement or amend this Indenture or the Securities without notice to or the
consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission
in connection with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided, however, that any such addition, change or
elimination (A) shall neither (i) apply to any Security of any series
created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provision or (B)
shall become effective only when there is no outstanding Security of
any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision;
(6) to make any change that does not adversely affect
in any material respect the interests of the Securityholders of any
series; or
(7) to establish additional series of Securities as
permitted by Section 2.01 hereof.
34
Section 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Trustee as to any
series of Securities may amend this Indenture or the Securities of that series
with the written consent of the Holders of a majority in principal amount of the
then outstanding Securities of each series affected by the amendment, with each
such series voting as a separate class. The Holders of a majority in principal
amount of the then outstanding Securities of any series may also waive
compliance in a particular instance by the Company with any provision of this
Indenture with respect to that series or the Securities of that series;
provided, however, that without the consent of each Securityholder affected, an
amendment or waiver may not:
(1) reduce the percentage of the principal amount of
Securities whose Holders must consent to an amendment or waiver;
(2) reduce the amount of, or postpone the date fixed
for, the payment of any sinking fund or analogous provision;
(3) reduce the rate of, or change the time for
payment of interest on, any Security;
(4) reduce the principal of or change the fixed
maturity of any Security or waive a redemption payment or alter the
redemption provisions with respect thereto;
(5) make any Security payable in money other than
that stated in the Security (including defaulted interest);
(6) reduce the principal amount of Original Issue
Discount Securities payable upon acceleration of the maturity thereof;
(7) make any change in Section 6.04, 6.07 or 9.02
(this sentence); or
(8) waive a default in the payment of the principal
of, or interest on, any Security, except to the extent otherwise
provided for in Section 6.02 hereof.
An amendment or waiver under this Section that waives, changes
or eliminates any covenant or other provision of this Indenture that 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 shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
The Company shall mail supplemental indentures to Holders upon
request. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture or waiver.
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Section 9.03. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security; provided, however, that unless a record date shall have
been established pursuant to Section 2.12(a) hereof, any such Holder or
subsequent Holder may revoke the consent as to his Security or portion of a
Security if the Trustee receives the notice of revocation before the date on
which the amendment or waiver becomes effective. An amendment or waiver shall
become effective on receipt by the Trustee of consents from the Holders of the
requisite percentage principal amount of the outstanding Securities of any
series, and thereafter shall bind every Holder of Securities of that series.
Section 9.04. Notation on or Exchange of Securities.
If an amendment or waiver changes the terms of a Security: (a)
the Trustee may require the Holder of the Security to deliver it to the Trustee,
the Trustee may, at the written direction of the Company and at the Company's
expense, place an appropriate notation on the Security about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on
any Security thereafter authenticated; or (b) if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
Section 9.05. Trustee to Sign Amendments, etc.
The Trustee shall receive an Opinion of Counsel stating that
the execution of any amendment or waiver proposed pursuant to this Article is
authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such amendment or waiver if the same does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver that affects the Trustee's own rights, duties, liabilities or immunities
under this Indenture or otherwise.
ARTICLE 10.
MISCELLANEOUS
Section 10.01. Indenture Subject to Trust Indenture Act.
This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture, and shall, to the extent applicable,
be governed by such provisions.
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Section 10.02. Notices.
Any notice or communication is duly given if in writing and
delivered in person or sent by first-class mail (registered or certified, return
receipt requested), telecopier or overnight air courier guaranteeing next-day
delivery, addressed as follows:
If to the Company:
Xxxxx-Illinois, Inc.
One XxxXxxx
Xxxxxx, Xxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next-day delivery.
Any notice or communication to a Securityholder shall be
mailed by first-class mail to his address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If the Company mails a notice or communication to
Securityholders, it shall mail a copy to the Trustee at the same time.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
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Section 10.03. Communication By Holders With Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been
complied with.
Section 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the certificate
provided for in Section 4.03 hereof) shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an officer's certificate or certificates of public
officials.
Section 10.06. Rules by Trustee and Agents.
The Trustee as to Securities of any series may make reasonable
rules for action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable rules
and set reasonable requirements for their functions.
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Section 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in New York, New York or Toledo, Ohio, are not required to
be open. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
Section 10.08. No Recourse Against Others.
A past, present or future director, officer, employee,
stockholder or incorporator, as such, of the Company or any successor
corporation shall not have any liability for any obligations of the Company
under any series of Securities or the Indenture or for any claim based on, in
respect of, or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
The waiver and release are part of the consideration of issuance of the
Securities.
Section 10.09. Counterparts.
This Indenture may be executed by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
Section 10.10. Governing Law.
The internal laws of the State of New York shall govern this
Indenture and the Securities, without regard to the conflict of laws provisions
thereof.
Section 10.11. Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 10.12. Effect of Headings, Table of Contents, etc.
The Article and Section headings herein and the table of
contents are for convenience only and shall not affect the construction hereof.
Section 10.13. Successors and Assigns.
All covenants and agreements of the Company in this Indenture
and the Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successor.
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Section 10.14. No Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first above written.
XXXXX-ILLINOIS, INC.
BY: /s/ Xxxxx X. Xxx Xxxxxx
-----------------------
Name: Xxxxx X. Xxx Xxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
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