EXHIBIT 4.2
UNITRIN, INC.,
Issuer
And
[---------------],
Trustee
-----------------------------------
INDENTURE
Dated as of [ ], 200_
-----------------------------------
Subordinated Debt Securities
CROSS-REFERENCE TABLE1
Section of
Trust Indenture Act of Section of
1939, as amended Indenture
--------------------------------- -------------
310(a) .................................................... Inapplicable
310(b) .................................................... 7.08
310(c) .................................................... Inapplicable
311(a) .................................................... 7.13
311(b) .................................................... 7.13
311(c) .................................................... Inapplicable
312(b) .................................................... 5.02(c)
312(c) .................................................... Inapplicable
313(a) .................................................... 5.04(a)
313(b) .................................................... 5.04(b)
313(c) .................................................... 5.04(b)
313(d) .................................................... Inapplicable
314(a) .................................................... Inapplicable
314(b) .................................................... Inapplicable
314(c) .................................................... Inapplicable
314(d) .................................................... Inapplicable
314(e) .................................................... Inapplicable
314(f) .................................................... Inapplicable
315(a) .................................................... Inapplicable
315(b) .................................................... Inapplicable
315(c) .................................................... Inapplicable
315(d) .................................................... Inapplicable
315(e) .................................................... Inapplicable
316(a) .................................................... Inapplicable
316(b) .................................................... Inapplicable
316(c) .................................................... Inapplicable
317(a) .................................................... Inapplicable
317(b) .................................................... Inapplicable
318(a) .................................................... Inapplicable
--------
1 This Cross-Reference Table does not constitute part of the
Indenture and shall not have any bearing on the interpretation of
any of its terms or provisions.
TABLE OF CONTENTS(1)
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms..............................................1
Affiliate..............................................................1
Authenticating Agent...................................................2
Bankruptcy Law.........................................................2
Board of Directors.....................................................2
Board Resolution.......................................................2
Business Day...........................................................2
Certificate............................................................2
Company................................................................2
Commission.............................................................2
Corporate Trust Office.................................................2
Custodian..............................................................2
Default................................................................2
Deferral Period........................................................3
Depositary.............................................................3
Event of Default.......................................................3
Exchange Act...........................................................3
Global Security........................................................3
Governmental Obligations...............................................3
herein.................................................................4
hereof.................................................................4
hereunder..............................................................4
Indebtedness...........................................................4
Indenture..............................................................4
Interest Payment Date..................................................4
Investment Company Act.................................................4
Officers' Certificate..................................................5
Opinion of Counsel.....................................................5
Original Issue Discount Security.......................................5
Outstanding............................................................5
Paying Agent...........................................................6
Person.................................................................6
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(1) This Table of Contents does not constitute part of the Indenture
and shall not have any bearing upon the interpretation of any of
its terms or provisions.
Place of Payment.......................................................6
Predecessor Security...................................................6
Redemption Date........................................................6
Redemption Price.......................................................6
Responsible Officer....................................................6
Securities.............................................................7
Securities Act.........................................................7
Securityholder.........................................................7
holder of Securities...................................................7
registered holder......................................................7
Senior Indebtedness....................................................7
Stated Maturity........................................................7
Subsidiary.............................................................7
Trustee................................................................7
Trust Indenture Act....................................................8
Voting Stock...........................................................8
Yield to Maturity......................................................8
ARTICLE II
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities..............................8
SECTION 2.02 Form of Securities and Trustee's Certificate....................12
SECTION 2.03 Denominations; Provisions for ayment...........................12
SECTION 2.04 Execution and Authentications...................................14
SECTION 2.05 Registration of Transfer and Exchange...........................15
SECTION 2.06 Temporary Securities............................................16
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.................17
SECTION 2.08 Cancellation....................................................17
SECTION 2.09 Benefits of Indenture...........................................18
SECTION 2.10 Authenticating Agent............................................18
SECTION 2.11 Global Securities...............................................19
SECTION 2.12 CUSIP Numbers...................................................20
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption......................................................20
SECTION 3.02 Notice of Redemption............................................20
SECTION 3.03 Payment Upon Redemption.........................................22
SECTION 3.04 Sinking Fund....................................................22
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities...........23
SECTION 3.06 Redemption of Securities for Sinking Fund.......................23
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest......................23
SECTION 4.02 Maintenance of Office or Agency.................................24
SECTION 4.03 Paying Agents...................................................25
SECTION 4.04 Statement by Officers as to Default.............................26
SECTION 4.05 Existence.......................................................26
SECTION 4.06 Waiver of Certain Covenants.....................................27
SECTION 4.07 Appointment to Fill Vacancy in Office of Trustee................27
SECTION 4.08 Compliance with Consolidation Provisions........................27
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.................................................27
SECTION 5.02 Preservation Of Information; Communications With
Securityholders.................................................28
SECTION 5.03 Reports by the Company..........................................28
SECTION 5.04 Reports by the Trustee..........................................29
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default...............................................29
SECTION 6.02 Collection of Indebtedness and
Suits for Enforcement by Trustee................................32
SECTION 6.03 Application of Moneys Collected.................................34
SECTION 6.04 Limitation on Suits.............................................34
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver......................................................35
SECTION 6.06 Control by Securityholders......................................35
SECTION 6.07 Undertaking to Pay Costs........................................36
SECTION 6.08 Waiver of Past Defaults..........................................36
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee..................37
SECTION 7.02 Certain Rights of Trustee.......................................38
SECTION 7.03 Trustee Not Responsible for Recitals or
Issuance or Securities..........................................39
SECTION 7.04 May Hold Securities.............................................40
SECTION 7.05 Moneys Held in Trust............................................40
SECTION 7.06 Compensation and Reimbursement..................................40
SECTION 7.07 Reliance on Officers' Certificate...............................41
SECTION 7.08 Disqualification; Conflicting Interests.........................41
SECTION 7.09 Corporate Trustee Required; Eligibility.........................41
SECTION 7.10 Resignation and Removal; Appointment of Successor...............42
SECTION 7.11 Acceptance of Appointment By Successor..........................43
SECTION 7.12 Merger, Conversion, Consolidation or Succession
to Business.....................................................45
SECTION 7.13 Preferential Collection of Claims Against the Company...........45
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders...........................45
SECTION 8.02 Proof of Execution by Securityholders...........................46
SECTION 8.03 Who May be Deemed Owners........................................46
SECTION 8.04 Certain Securities Owned by Company Disregarded.................47
SECTION 8.05 Actions Binding on Future Securityholders.......................47
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders.................................................48
SECTION 9.02 Supplemental Indentures With Consent of Securityholders.........49
SECTION 9.03 Effect of Supplemental Indentures...............................50
SECTION 9.04 Securities Affected by Supplemental Indentures..................50
SECTION 9.05 Execution of Supplemental Indentures............................51
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 10.01 When the Company May Consolidate, Merge, Etc...................51
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture........................52
SECTION 11.02 Discharge of Obligations.......................................53
SECTION 11.03 Deposited Moneys to be Held in Trust...........................53
SECTION 11.04 Payment of Moneys Held by Paying Agents........................54
SECTION 11.05 Repayment to Company...........................................54
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse....................................................54
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01 Company's Option to Effect Defeasance or
Covenant Defeasance............................................55
SECTION 13.02 Defeasance and Discharge.......................................55
SECTION 13.03 Covenant Defeasance............................................56
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance................56
SECTION 13.05 Deposited Money and Government Obligations to Be
Held in Trust; Miscellaneous Provisions........................58
SECTION 13.06 Reinstatement..................................................58
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Effect on Successors and Assigns...............................59
SECTION 14.02 Actions by Successor...........................................59
SECTION 14.03 Notices........................................................59
SECTION 14.04 Governing Law..................................................60
SECTION 14.05 Treatment of Securities as Debt................................60
SECTION 14.06 Compliance Certificates and Opinions...........................60
SECTION 14.07 Payments on Business Days......................................60
SECTION 14.08 Conflict with Trust Indenture Act..............................61
SECTION 14.09 Counterparts...................................................61
SECTION 14.10 Separability...................................................61
SECTION 14.11 Assignment.....................................................61
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01 Agreement to Subordinate.......................................61
SECTION 15.02 Default on Senior Indebtedness.................................62
SECTION 15.03 Liquidation; Dissolution; Bankruptcy...........................62
SECTION 15.04 Subrogation....................................................64
SECTION 15.05 Trustee to Effectuate Subordination............................65
SECTION 15.06 Notice by the Company..........................................65
SECTION 15.07 Rights of the Trustee; Holders of Senior Indebtedness..........66
SECTION 15.08 Subordination May Not Be Impaired..............................66
INDENTURE, dated as of ______, 200_, between Unitrin, Inc., a
Delaware corporation (the "Company"), and [o], as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured subordinated debt securities, debentures, notes,
bonds, or other evidences of indebtedness (hereinafter referred to as the
"Securities"), in an unlimited aggregate principal amount to be issued from
time to time in one or more series, as provided in this Indenture;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase
of the Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders of
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this instrument.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. When used with respect
to any Person, "control" means the power, directly or indirectly, to direct
or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" and "under common
control with" have meanings correlative to the foregoing.
"Authenticating Agent" means an authenticating agent with respect
to all or any of the series of Securities appointed with respect to all or
any series of the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal
or state bankruptcy, insolvency, reorganization or other law for the relief
of debtors.
"Board of Directors" means the Board of Directors of the Company
or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" means, with respect to any series of Securities,
any day other than a day on which federal or state banking institutions in
the Borough of Manhattan, The City of New York, are authorized or obligated
by law, executive order or regulation to close.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company. The Certificate need not comply with the
provisions of Section 14.06.
"Company" means Unitrin, Inc., a corporation duly organized and
existing under the laws of the State of Delaware, and, subject to the
provisions of Article Ten, shall also include its successors and assigns.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Corporate Trust Office" means the office of the Trustee at which,
at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at [o], New York,
New York [o].
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Deferral Period," with respect to any series of Securities, means
any period during which the Company elects to extend the interest payment
period on such series of Securities pursuant to Section 4.01(b); provided
that a Deferral Period (or any extension thereof) may not extend beyond the
Stated Maturity or the Redemption Date of any Security of such series and
must end on an Interest Payment Date or, if the Securities are redeemed, on
an Interest Payment Date or the Redemption Date for such Securities.
"Depositary" means, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or
Section 2.11.
"Event of Default" means, with respect to Securities of a
particular series any event specified in Section 6.01 (as may be modified
as contemplated by Section 2.01(16)), continued for the period of time, if
any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Global Security" means, with respect to any series of Securities,
a Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary
or its nominee.
"Governmental 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, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"herein," "hereof" and "hereunder," and other words of similar
import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Indebtedness" of any Person means the principal of and premium,
if any, and interest due on indebtedness of such Person, whether
outstanding on the date of this Indenture or thereafter created, incurred
or assumed, which is (a) indebtedness for money borrowed, (b) any
obligation of, or any obligation guaranteed by, such Person for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, (c) any obligation of, or any such
obligation guaranteed by, such Person evidenced by bonds, debentures, notes
or similar written instruments, including obligations assumed or incurred
in connection with the acquisition of property, assets or businesses
(provided, however, that the deferred purchase price of any other business
or property or assets shall not be considered Indebtedness if the purchase
price thereof is payable in full within 90 days from the date on which such
indebtedness was created), (d) any obligations of such Person as lessee
under leases required to be capitalized on the balance sheet of the lessee
under generally accepted accounting principles, (e) all obligations of such
Person for the reimbursement on any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction, (f) all
obligations of such Person in respect of interest rate swap, cap or other
agreements, interest rate future or options contracts, currency swap
arrangements, currency future or option contracts and other similar
agreements, (g) all obligations of the types referred to in clauses (a)
through (f) above of other persons for the payment of which such Person is
responsible or liable as obligor, guarantor or otherwise, (h) all
obligations of the types referred to in clauses (a) through (g) above of
other persons secured by any lien on any property or asset of such Person
(whether or not such obligation is assumed by such Person), and (i) any
amendments, renewals, extensions, modifications and refundings of any of
the foregoing
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by Section
2.01.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on a Security of a
particular series.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to
time.
"Officers' Certificate" means a certificate signed by the Chief
Financial Officer, President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 14.06, if and to the extent
required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel,
who may be an employee of or counsel for the Company that is delivered to
the Trustee in accordance with the terms hereof. Each such opinion shall
include the statements provided for in Section 14.06, if and to the extent
required by the provisions thereof.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 6.01(b).
"Outstanding," when used with reference to Securities of any
series, means, subject to the provisions of Section 8.04, as of any
particular time, all Securities of that series theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any Paying Agent, or delivered to
the Trustee or any Paying Agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.07; and (d) Securities as to which Defeasance (as
defined in Section 13.02) has been effected pursuant to Section 13.02,
provided, however, that in determining whether the holders of the requisite
principal amount of the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable
as of such date upon acceleration of the maturity thereof to such date
pursuant to Section 6.01(b), (B) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by Section
2.01, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date
in the manner provided as contemplated by Section 2.01, of the principal
amount of such Security (or, in the case of a Security described in Clause
(A) or (B) above, of the amount determined as provided in such Clause), and
(D) Securities beneficially owned by the Company or any other obligor upon
such Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or
of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited
liability company, business trust, joint- venture, joint-stock company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of
any series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as
specified as contemplated by Section 2.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Responsible Officer," when used with respect to the Trustee,
means the Chief Executive Officer, the President, any Vice- President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or
any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the preamble of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securityholder," "holder of Securities," "registered holder," or
other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"Senior Indebtedness" means all obligations of the Company in
respect of Indebtedness of the Company, whether outstanding at the date of
execution of this Indenture, or thereafter incurred or created; provided,
that, "Senior Indebtedness" shall not include: (1) indebtedness or monetary
obligations to trade creditors created or assumed by the Company in the
ordinary course of business in connection with the obtaining of materials
or services; (2) indebtedness that is by its terms subordinated to or ranks
equal with the Securities; or (3) any indebtedness of the Company to its
Affiliates (including all debt securities and guarantees in respect of
those debt securities, issued to any trust, partnership or other entity
affiliated with the Company that is a financing vehicle of the Company (a
"financing entity") in connection with the issuance by such financing
entity of preferred securities or other securities guaranteed by the
Company) unless otherwise expressly provided in the terms of any such
indebtedness.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at
the time be owned, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries,
(ii) any general partnership, limited liability company, joint venture or
similar entity, at least a majority of whose outstanding partnership,
membership or similar interests shall at the time be owned by such Person,
or by one or more of its Subsidiaries, or by such Person and one or more of
its Subsidiaries and (iii) any limited partnership or limited liability
company of which such Person or any of its Subsidiaries is a general
partner or principal managing member.
"Trustee" means [o] and, subject to the provisions of Article
Seven, shall also include its successors and assigns and, if at any time
there is more than one Person acting in such capacity hereunder, "Trustee"
shall mean each such Person. The term "Trustee" as used with respect to a
particular series of the Securities shall mean the trustee with respect to
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in
effect at the date of execution of this instrument.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equivalent) of such Person,
other than shares, interests, participations or other equivalents having
such power only by reason of the occurrence of a contingency.
"Yield to Maturity" means the yield to maturity on a series of
securities calculated at the time of issuance of such series or, if
applicable, of the most recent redetermination of interest on such series,
and calculated in accordance with accepted financial practice.
ARTICLE II
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
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 up to the aggregate
principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution of the Company or pursuant to one or
more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company, and set forth in an Officers' Certificate
of the Company, or established in one or more indentures supplemental
hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that 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 that series);
(3) the price or prices at which the Company will sell the
Securities;
(4) the Stated Maturity of the Securities;
(5) the rate or rates at which the Securities of the series shall
bear interest or the manner of calculation of such rate or rates, if
any;
(6) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the
manner of determination of such Interest Payment Dates and the record
date for the determination of holders to whom interest is payable on
any such Interest Payment Dates;
(7) the right, if any, to extend the interest payment periods and
the duration of any such Deferral Period, including the maximum
consecutive period during which interest payment periods may be
extended;
(8) if the amount of principal of or any premium or interest on
any Securities of the series may be determined with reference to any
index, formula, or other method, such as one or more currencies,
commodities, equity indices or other indices, and the manner in which
such amounts shall be determined;
(9) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable;
(10) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(11) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions (including payments made in cash in participation
of future sinking fund obligations) or at the option of a holder
thereof and the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(12) if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, the denominations in which
the Securities of the series shall be issuable;
(13) if other than the full principal amount thereof, the
portion, or methods of determining 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 6.01;
(14) if other than the currency of the United States of America,
the currency, currencies or currency units or composite currencies in
which the principal of or any premium or interest on any Securities of
the series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America for
any purpose, including for purposes of the definition of "Outstanding"
in Section 1.01;
(15) provisions granting special rights to holders of the
Securities upon the occurrence of specific events;
(16) any deletions from, modifications of or additions to the
Events of Default or the Company's covenants provided for with respect
to the Securities of the series;
(17) if applicable, that the Securities of the series, in whole
or any specified part, shall be defeasible pursuant to Section 13.02
or Section 13.03 or both such Sections and, if other than by a Board
Resolution, the manner in which any election by the Company to defease
such Securities shall be evidenced;
(18) whether the subordination provisions contained in Article
Fifteen or different subordination provisions will apply to the
Securities.
(19) whether the Securities will be convertible into or
exchangeable for shares of common stock, preferred stock or other
securities or property of the Company and, if so, the terms and
conditions upon which such Securities will be so convertible or
exchangeable, including the conversion or exchange price and the
conversion or exchange period;
(20) whether the Securities are issuable as a Global Security
and, in such case, the identity for the Depositary for such series and
the terms and conditions upon which Global Securities may be exchanged
for certificated debt securities;
(21) any special tax implications of the Securities of the
series, including any provisions for Original Issue Discount
Securities, if offered;
(22) any change in the right of the Trustee or the requisite
holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 6.01;
(23) any trustees, authenticating or Paying Agents, transfer
agents or registrars or other agents with respect to the Securities;
and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 9.01(10)), but which may modify or delete any
provision of this Indenture with respect to such series, provided that
no such term may modify or delete any provision hereof if imposed by
the Trust Indenture Act, 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 one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting forth the
terms of the series.
Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or
different methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with different
redemption dates.
SECTION 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purpose as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution of the Company and as set forth
in an Officers' Certificate of the Company and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Securities of that series may be listed, or to
conform to usage.
SECTION 2.03 Denominations; Provisions for Payment.
The Securities shall be issuable as registered Securities and in
the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(12). The Securities of a
particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. Unless otherwise provided pursuant
to Section 2.01, the principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior
to maturity, shall be payable in the coin or currency of the United States
of America that at the time is legal tender for public and private debt, at
the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, the City and State of New York. Each Security shall
be dated the date of its authentication. Unless otherwise provided pursuant
to Section 2.01, interest on the Securities shall be computed on the basis
of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In
the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular
record date with respect to any Interest Payment Date and prior to such
Interest Payment Date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section 3.03.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 2.01, any interest
on any Security that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date for Securities of the same
series (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant regular record date by
virtue of having been such holder; and such Defaulted Interest shall be
paid by the Company, at its election, as provided in clause (1) or clause
(2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on such special record date and shall be no
longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company or
one or more indentures supplemental hereto establishing the terms of any
series of Securities pursuant to Section 2.01 hereof, the term "regular
record date" as used in this Section with respect to a series of Securities
with respect to any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights
to interest accrued and unpaid, and to accrue, that were carried by such
other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its
Chief Executive Officer, the President or one of its Vice Presidents, under
its corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any Person who
shall have been Chief Executive Officer, President or a Vice President
thereof, notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have ceased to
be the Chief Executive Officer, President or a Vice President of the
Company. The seal of the Company may be in the form of a facsimile of such
seal and may be impressed, affixed, imprinted or otherwise reproduced on
the Securities. The Securities may contain such notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security
shall be dated the date
A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Securities, signed by its Chief Executive Officer, the President or any
Vice President and its Secretary or any Assistant Secretary, and the
Trustee in accordance with such written order shall authenticate and
deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
form and terms thereof have been established in conformity with the
provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation
thereof at the office or agency of the Company designated for such purpose
in the Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Security or Securities of the
same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall
execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by
such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities in case
of partial redemption of any series, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, the second
paragraph of Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or
portions thereof called for redemption. The provisions of this Section 2.05
are, with respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially
in the form of the definitive Securities in lieu of which they are issued,
but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company. Every
temporary Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor (without
charge to the holders), at the office or agency of the Company designated
for the purpose in the Borough of Manhattan, the City and State of New
York, and the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the
Company advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the Company. Until
so exchanged, the temporary Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Securities of such
series authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen.
In every case the applicant for a substituted Security shall furnish to the
Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant's Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the
issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security that
has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as
they may require to save them harmless, and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Security and of the ownership
thereof.
Every replacement Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities, and shall
preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company
or any Paying Agent, be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be canceled by it, and no Securities
shall be issued in lieu thereof except as expressly required or permitted
by any of the provisions of this Indenture. On request of the Company at
the time of such surrender, the Trustee shall deliver to the Company
canceled Securities held by the Trustee. In the absence of such request the
Trustee may dispose of canceled Securities in accordance with its standard
procedures and deliver a certificate of disposition to the Company. If the
Company shall otherwise acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Securities any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto
and of the holders of the Securities.
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding
there may be an Authenticating Agent for any or all such series of
Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
All references in this Indenture to the authentication of Securities by the
Trustee shall be deemed to include authentication by an Authenticating
Agent for such series. Each Authenticating Agent shall be acceptable to the
Company and shall be a corporation that has a combined capital and surplus,
as most recently reported or determined by it, sufficient under the laws of
any jurisdiction under which it is organized or in which it is doing
business to conduct a trust business, and that is otherwise authorized
under such laws to conduct such business and is subject to supervision or
examination by federal or state authorities. If at any time any
Authenticating Agent shall cease to be eligible in accordance with these
provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01 that
the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary." Any
endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in the
written request signed in the name of the Company, by the Chief Exective
Officer, the President or any Vice President and by the Secretary or an
Assistant Secretary thereof to be delivered to the Trustee pursuant to
Section 2.04 or Section 2.06.
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in
the manner provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as
Depositary for such series or if at any time the Depositary for such series
shall no longer be registered or in good standing under the Exchange Act,
or other applicable statute or regulation, and a successor Depositary for
such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to the
Securities of such series and the Company will execute, and subject to
Section 2.05, the Trustee will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities of such series. In such event the Company will execute
and subject to Section 2.05, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate
and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global
Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
SECTION 2.12 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Securityholders; provided that
any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued
hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Securities of any
series in accordance with the right reserved so to do, the Company shall,
or shall cause the Trustee to, give notice of such redemption to holders of
the Securities of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and not
more than 90 days before the date fixed for redemption of that series to
such holders at their last addresses as they shall appear upon the Security
Register unless a shorter period is specified in the Securities to be
redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are
to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the
Company in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the
redemption is for a sinking fund, if such is the case. If less than all the
Securities of a series are to be redeemed, the notice to the holders of
Securities of that series to be redeemed in whole or in part shall specify
the particular Securities to be so redeemed. In case any Security is to be
redeemed in part only, the notice that relates to such Security shall state
the portion of the principal amount thereof to be redeemed, and shall state
that on and after the redemption date, upon surrender of such Security, a
new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S. dollars
($1,000) or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chief Executive Officer, the
President or any Vice President, instruct the Trustee or any Paying Agent
to call all or any part of the Securities of a particular series for
redemption and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own name as
the Trustee or such Paying Agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such Paying
Agent, the Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such Paying Agent, as the case may be, such
Security Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such Paying Agent
to give any notice by mail that may be required under the provisions of
this Section.
SECTION 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Securities or portions of Securities of
the series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with
Securities.
The Company (i) may deliver Outstanding Securities of a
series (other than any Securities previously called for redemption) and
(ii) may apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to
the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series, provided that
such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption
price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the
portion thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers' Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.
(a) The Company shall pay or cause to be paid the principal of and
premium, if any, and interest (including interest accruing during any
Deferral Period) on the Securities on or prior to the dates and in the
manner provided in such Securities or pursuant to this Indenture. An
installment of principal, premium, if any, or interest shall be considered
paid on the applicable due date if on such date the Trustee or the Paying
Agent holds, in accordance with this Indenture, money sufficient to pay all
of such installment then due.
(b) Notwithstanding the provisions of Section 4.01(a) or any other
provision herein to the contrary, the Company shall have the right, as
provided in an Officer's Certificate or Supplemental Indenture issued
pursuant to Section 2.01, in its sole and absolute discretion at any time
and from time to time while the Securities of any series are outstanding,
so long as no Event of Default with respect to such series of Securities
has occurred and is continuing, to defer payments of interest by extending
the interest payment period for such series of Securities for the maximum
consecutive period, if any, specified for such series of Securities,
provided that such Deferral Period (or any extension thereof) may not
extend beyond the Stated Maturity date or Redemption Date of any Security
of such series, and must end on an Interest Payment Date or, if the
Securities are redeemed, on an Interest Payment Date or the Redemption Date
for such Securities, and provided further that at the end of each Deferral
Period the Company shall pay all interest then accrued and unpaid (together
with interest thereon to the extent permitted by applicable law at the rate
accruing on such Securities). Prior to the termination of a Deferral
Period, the Company may shorten or may further extend the interest payment
period for such series of Securities, provided that such Deferral Period
together with all such previous and further extensions may not exceed the
maximum consecutive period specified for such series of Securities, end on
a date other than an Interest Payment Date or extend beyond the Stated
Maturity date or Redemption Date of any Security of such series. The
Company shall give the Trustee written notice of the Company's election to
begin a Deferral Period for any series of Securities and any shortening or
extension thereof at least five Business Days prior to the date the
interest on such Securities is payable. The Company shall give or cause the
Trustee to give notice (a form of which shall be provided by the Company to
the Trustee) of the Company's election to begin a Deferral Period to the
Holders by first class mail, postage prepaid.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remains Outstanding, the
Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at
such other location or locations as may be designated as provided in this
Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written
notice signed by its Chief Executive Officer, President or a Vice President
and delivered to the trustee, designate some other office or agency for
such purposes or any of them. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more Paying Agents for all
or any series of the Securities, other than the Trustee, the Company will
cause each such Paying Agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any or interest on the
Securities of that series (whether such sums have been paid to it by
the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any
payment of the principal of and premium, if any or interest on the
Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent; and
(4) that it will perform all other duties of Paying Agent as set
forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with respect
to any series of the Securities, it will on or before each due date of the
principal of, and premium, if any, or interest on Securities of that
series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay such principal, and
premium, if any, or interest so becoming due on Securities of that series
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Securities) to take such
action. Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of,
and premium, if any, or interest on any Securities of that series, deposit
with the Paying Agent a sum sufficient to pay the principal, and premium,
if any, or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i)
the agreement to hold sums in trust as provided in this Section is subject
to the provisions of Section 11.05, and (ii) the Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such Paying Agent;
and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
SECTION 4.04 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which they may have knowledge.
SECTION 4.05 Existence.
Subject to Article Ten, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right
or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and that the loss thereof is not disadvantageous in any
material respect to the holders.
SECTION 4.06 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.01 for
Securities of such series, the Company may, with respect to the Securities
of any series, omit in any particular instance to comply with any term,
provision or condition set forth in any covenant provided pursuant to
Sections 2.01(16), 9.01(4) or 9.01(7) for the benefit of the holders of
such series, if before the time for such compliance the holders of at least
a majority in aggregate principal amount of the Outstanding Securities of
such series shall, by act of such holders, either waive such compliance in
such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
SECTION 4.07 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.08 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain
Outstanding, consolidate with, or merge into, or merge into itself, or sell
or convey all or substantially all of its property to any other company
unless the provisions of Article Ten hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually on [o] and [o], a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each
series of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such list at
any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and (b) at such other times as
the Trustee may request in writing within 30 days after the receipt by the
Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished;
provided, however, that, in either case, no such list need be furnished for
any series for which the Trustee shall be the Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With
Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the holders of Securities contained in the most recent list furnished to it
as provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Securities.
SECTION 5.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
that the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to Section 13 of the
Exchange Act, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed
from time to time by the Commission, such additional information, documents
and reports with respect to compliance by the Company with the conditions
and covenants provided for in this Indenture as may be required from time
to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to the
Securityholders, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of
this Section as may be required by the Trust Indenture Act and the rules
and regulations prescribed from time to time by the Commission.
SECTION 5.04 Reports by the Trustee.
(a) On or before [o] in each year in which any of the Securities
are Outstanding, the Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register, a brief report dated as of the preceding [o], if and
to the extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the
Trustee when any Securities become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a
particular series, "Event of Default" means any one or more of the
following events that has occurred and is continuing, unless such event is
specifically deleted or modified in accordance with Section 2.01:
(1) the Company defaults in the payment of any installment of
interest upon any of the Securities of that series, as and when the
same shall become due and payable, and continuance of such default for
a period of 30 days; provided, however, that during any Deferral
Period for the Securities of that series, failure to pay interest on
the Securities of that series shall not constitute a default in the
payment of interest for this purpose; and, provided, further, that a
valid extension of an interest payment period by the Company in
accordance with the terms of any indenture supplemental hereto, shall
not constitute a default in the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of, or
premium, if any, on any of the Securities of that series as and when
the same shall become due and payable whether at maturity, upon
redemption, because of acceleration or otherwise, or in any payment
required by any sinking or analogous fund established with respect to
that series; provided, however, that a valid extension of the maturity
of such Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of
principal or premium, if any;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely
for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written notice
of such failure, requiring the same to be remedied and stating that
such notice is a "Notice of Default" hereunder, shall have been given
to the Company by the Trustee, by registered or certified mail, or to
the Company and the Trustee by the holders of at least 25% in
principal amount of the Securities of that series at the time
Outstanding;
(4) the entry by a court of competent jurisdiction of:
(i) a decree or order for relief in respect of the Company
in an involuntary proceeding under any applicable Bankruptcy Law
and such decree or order shall remain unstayed and in effect for
a period of 90 consecutive days;
(ii) a decree or order adjudging the Company to be
insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Company and such
decree or order shall remain unstayed and in effect for a period
of 90 consecutive days; or
(iii) a final and non-appealable order appointing a
Custodian of the Company or of any substantial part of the
property of the Company, or ordering the winding up or
liquidation of the affairs of the Company;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law: (i) commences a voluntary case or proceeding; (ii)
consents to the entry of an order for relief against it in an
involuntary case or proceeding; (iii) files a petition or answer or
consent seeking reorganization or relief or consents to such filing or
to the appointment of or taking possession by a Custodian of it or for
all or substantially all of its property, and such Custodian is not
discharged within 60 days; (iv) makes a general assignment for the
benefit of its creditors; or (v) admits in writing its inability to
pay its debts generally as they become due; or
(6) any other Event of Default provided for pursuant to Section
2.01 with respect to Securities of that series.
(b) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 2.01, if an Event
of Default (other than an Event of Default specified in Section 6.01(a)(5))
with respect to Securities of any series at the time Outstanding occurs and
is continuing, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of that series then
Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders), may declare the principal of all
the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) to be due and payable
immediately, and upon any such declaration the same shall become and shall
be immediately due and payable. If an Event of Default specified in Section
6.01(a)(5) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if
any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by
the terms thereof) shall automatically, and without any declaration or
other action on the part of the Trustee or any holder, become immediately
due and payable.
(c) At any time after the principal of the Securities of that
series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of that series and the
principal of, and premium, if any, on any and all Securities of that series
that shall have become due otherwise than by acceleration (with interest
upon such principal and premium, if any, and, to the extent that such
payment is enforceable under applicable law, upon overdue installments of
interest, at the rate or Yield to Maturity (in the case of Original Issue
Discount Securities) expressed in the Securities of that series (or at the
respective rates of interest or Yields to Maturity of all the Securities,
as the case may be) to the date of such payment or deposit) and the amount
payable to the Trustee under Section 7.06, and (ii) any and all Events of
Default under the Indenture with respect to such series, other than the
nonpayment of principal on Securities of that series (or, if any Securities
of that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) that
shall not have become due by their terms, shall have been remedied or
waived as provided in Section 6.08.
No such rescission and annulment shall extend to or
shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company, and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee.
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Securities of a
series, or any payment required by any sinking or analogous fund
established with respect to that series as and when the same shall have
become due and payable, and such default shall have continued for a period
of 90 Business Days, or (2) in case it shall default in the payment of the
principal of, or premium, if any, on any of the Securities of a series when
the same shall have become due and payable, whether upon maturity of the
Securities of a series or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for
the benefit of the holders of the Securities of that series, the whole
amount that then shall have become due and payable on all such Securities
for principal, and premium, if any, or interest, or both, as the case may
be, with interest upon the overdue principal, and premium, if any, and (to
the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate expressed in the
Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the reasonable costs and expenses of
collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Securities of that series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or other obligor upon the Securities of that
series, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may
be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under
the Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Securityholders, to pay to
the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of
any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in the Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing 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 of that series 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 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal, or premium, if
any, or interest, upon presentation of the Securities of that series, and
notation thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and
unpaid upon Securities of such series for principal, and premium,
if any, and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable
on such Securities for principal, and premium, if any, and
interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns or to whomever may be lawfully
entitled to receive the same or as a court of competent jurisdiction
may direct.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series
specifying such Event of Default, as hereinbefore provided; (ii) the
holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own
name as trustee hereunder; (iii) such holder or holders shall have offered
to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby; and (iv)
the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any
other provisions of this Indenture, the right of any holder of any Security
to receive payment of the principal of, and premium, if any, and interest
on such Security, as therein provided, on or after the respective due dates
expressed in such Security (or in the case of redemption, on the redemption
date), or to institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker
and holder of every Security of such series with every other such taker and
holder and the Trustee, that no one or more holders of Securities of such
series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the holders of any other of such Securities, or to obtain or
seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of
Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in
equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not
Waiver.
(a) Except as otherwise provided in Section 2.07, all
powers and remedies given by this Article to the Trustee or to the
Securityholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any other powers and remedies available to the Trustee
or the holders of the Securities, by judicial proceedings or otherwise, to
enforce the performance or observance of the covenants and agreements
contained in this Indenture or otherwise established with respect to such
Securities.
(b) No delay or omission of the Trustee or of any holder of any of
the Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to
such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture or be unduly
prejudicial to the rights of holders of Securities of any other series at
the time Outstanding determined in accordance with Section 8.04. Subject to
the provisions of Section 7.01, the Trustee shall have the right to decline
to follow any such direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
SECTION 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Securities by such holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders, holding
more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of, or premium, if any, or
interest on any Security of such series, on or after the respective due
dates expressed in such Security or established pursuant to this Indenture.
SECTION 6.08 Waiver of Past Defaults.
The holders of not less than a majority in principal amount of the
Outstanding Securities of any series, determined in accordance with Section
8.04, may on behalf of the holders of all the Securities of such series
waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any premium
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may
have occurred, shall undertake to perform with respect to the Securities of
such series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that
series such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of
Default with respect to the Securities of a series and after the
curing or waiving of all such Events of Default with respect to
that series that may have occurred:
(a) the duties and obligations of the
Trustee shall with respect to the Securities of such
series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable
with respect to the Securities of such series except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(b) in the absence of bad faith on the
part of the Trustee, the Trustee may with respect to
the Securities of such series conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to
the requirements of this Indenture;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved
that the Trustee, was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a
majority in principal amount of the Securities of any series at
the time Outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee under
this Indenture with respect to the Securities of that series; and
(4) None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that
the repayment of such funds or liability is not reasonably assured
to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company, by the Chief Executive
Officer, the President or any Vice President and by the Secretary or an
Assistant Secretary thereof (unlsess other evidence in respect thereof is
specifically prescribed herein);
(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders, pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the reasonable costs,
expenses and liabilities that may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived) to exercise with respect to
Securities of that series such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of
the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or
Securities.
(a) The recitals contained herein and in the Securities shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Securities or of the proceeds of
such Securities, or for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or application of any
moneys received by any Paying Agent other than the Trustee.
SECTION 7.04 May Hold Securities.
The Trustee or any Paying Agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee,
Paying Agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), as the Company, and the Trustee may from time
to time agree in writing, for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of
the powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including
the reasonable costs and expenses of defending itself against any claim of
liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for reasonable expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities.
SECTION 7.07 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and the Company shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the
Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America
or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state,
territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. The Company may
not, nor may any Person directly or indirectly controlling, controlled by,
or under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at any
time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security
Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such
series by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within
30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee with respect to Securities of such
series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08 after written request therefor by the
Company or by any Securityholder who has been a bona fide holder
of a Security or Securities for at least six months; or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 and shall fail to
resign after written request therefor by the Company or by any
such Securityholder; or
(3) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or commence
a voluntary bankruptcy proceeding, or a receiver of the Trustee or
of its property shall be appointed or consented to, or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (i) the Company may remove the Trustee with respect
to all Securities and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or (ii) unless the Trustee's duty to resign is stayed as
provided herein, any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months may, on behalf of that
holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the
consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to
any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section may
be appointed with respect to the Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect
to the Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee
with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and 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 which (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 deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that no Trustee shall
be responsible for any act or failure to act on the part of any other
Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such
successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten
days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense
of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be qualified under the provisions of Section 7.08
and eligible under the provisions of Section 7.09, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor
Trustee had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent included therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any
such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number
of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Securities of that series shall be computed as
of the record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution
of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person
of any of the Securities shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any Paying Agent and any Security
Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account
of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the
Company nor the Trustee nor any Paying Agent nor any Security Registrar
shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any
direction, consent of waiver under this Indenture, the Securities of that
series that are owned by the Company or any other obligor on the Securities
of that series or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities of such series that
the Trustee actually knows are so owned shall be so disregarded. The
Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by
the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken
by the holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security, and of any
Security issued in exchange therefor, on registration of transfer thereof
or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or more of the
following purposes:
(1) to cure any ambiguity, defect, or
inconsistency herein, in the Securities of any series;
(2) to comply with Article Ten;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(4) to add to the covenants of the Company for
the benefit of the holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company;
(5) to add to, delete from, or revise the
conditions, limitations, and restrictions on the authorized
amount, terms, or purposes of issue, authentication, and delivery
of Securities, as herein set forth;
(6) to make any change that does not adversely
affect the rights of any Securityholder in any material respect;
(7) to provide for the issuance of and establish
the form and terms and conditions of the Securities of any series
as provided in Section 2.01, to establish the form of any
certifications required to be furnished pursuant to the terms of
this Indenture or any series of Securities, or to add to the
rights of the holders of any series of Securities;
(8) to add any additional Events of Default for
the benefit of the holders of all or any series of Securities (and
if such additional Events of Default are to be for the benefit of
less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the
benefit of such series);
(9) to add to or change any of the provisions of
this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in uncertificated form;
(10) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided 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 such Security
Outstanding;
(11) to secure the Securities; or
(12) to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements
of Section 7.11.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any Securities of any
series, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof; (ii) reduce the amount of principal of
an Original Issue Discount Security or any other Security payable upon
acceleration of the maturity thereof pursuant to Section 6.01(b); (iii)
change the currency in which any Security or any premium or interest is
payable; (iv) impair the right to institute suit for any payment on or with
respect to any Security; (v) reduce the percentage in principal amount of
outstanding Securities of any series, the consent of whose holders is
required for modification or amendment of this Indenture or for waiver of
compliance with certain provisions of this Indenture or for waiver of
certain defaults; (vi) reduce the requirements contained in this Indenture
for quorum or voting; or (vii) modify any of the above provisions.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Article Ten, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Article Ten, may
bear a notation in form approved by the Company, provided such form meets
the requirements of any exchange upon which such series may be listed, as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of that series so modified as to
conform, in the opinion of the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared by the Company, authenticated by the Trustee and delivered
in exchange for the Securities of that series then Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may, in its discretion, but shall not be obligated to, enter into such
supplemental indenture. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel need not
be provided in connection with the execution of a supplemental indenture
that establishes the terms of a series of Securities pursuant to Section
2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their
names and addresses appear upon the Security Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 10.01 When the Company May Consolidate, Merge, Etc.
The Company may not (a) merge with or into or consolidate with, or
(b) sell, assign, transfer, lease or convey all or substantially all of its
properties and assets to, any Person other than, with respect to this
clause (b), a direct or indirect wholly-owned subsidiary of the Company,
and no Person shall (x) merge with or into or consolidate with the Company,
or (y) except for any direct or indirect wholly-owned subsidiary of the
Company, sell, assign, transfer, lease or convey all or substantially all
of its properties and assets to the Company, unless:
(a) the Company is the surviving corporation or the
Person formed by or surviving such merger or consolidation or to which such
sale, assignment, transfer, lease or conveyance shall have been made (the
"Successor"), if other than the Company, shall expressly assume by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no
default or Event of Default shall have occurred and be continuing;
(c) the Company delivers to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such supplemental indenture
complies with this Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the
obligor on the Securities with the same effect as if the Successor had been
named as the Company herein but, in the case of a sale, assignment,
transfer, lease or conveyance of all or substantially all of the properties
and assets of the Company, the predecessor Company will not be released
from its obligations to pay the principal of, premium, if any, and interest
on the Securities.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore
authenticated (other than any Securities that shall have been destroyed,
lost or stolen and that shall have been replaced or paid as provided in
Section 2.07) and Securities for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated and held
in trust by the Company (and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such Securities
of a particular series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay at maturity or upon redemption all Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal,
and premium, if any, and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable hereunder
with respect to such series by the Company then this Indenture shall
thereupon cease to be of further effect with respect to such series except
for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10,
that shall survive until the date of maturity or redemption date, as the
case may be, and Sections 7.06 and 11.05, that shall survive to such date
and thereafter, and the Trustee, on demand of the Company and at the cost
and expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
SECTION 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not
become due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust funds
money in U.S. dollars sufficient or an amount of non-callable Governmental
Obligations, the principal of and interest on which when due, will be
sufficient or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent accountants expressed in a
written certification thereof delivered to the Trustee, to pay at maturity
or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal, and
premium, if any, and interest due or to become due to such date of maturity
or date fixed for redemption, as the case may be, and if the Company shall
also pay or cause to be paid all other sums payable hereunder by the
Company with respect to such series, then after the date such moneys or
Governmental Obligations, as the case may be, are deposited with the
Trustee the obligations of the Company under this Indenture with respect to
such series shall cease to be of further effect except for the provisions
of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10 and 11.05 hereof
that shall survive until such Securities shall mature and be paid.
Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the holders of
the particular series of Securities for the payment or redemption of which
such moneys or Governmental Obligations have been deposited with the
Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of
this Indenture all moneys or Governmental Obligations then held by any
Paying Agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such Paying Agent shall
be released from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any Paying
Agent or the Trustee, or then held by the Company, in trust for payment of
principal of or premium or interest on the Securities of a particular
series that are not applied but remain unclaimed by the holders of such
Securities for at least two years after the date upon which the principal
of, and premium, if any, or interest on such Securities shall have
respectively become due and payable, shall be repaid to the Company on May
31 of each year or (if then held by the Company) shall be discharged from
such trust; and thereupon the Paying Agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled
to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Company for the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are
solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01 Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may elect, at its option at any time, to have Section
13.02 or Section 13.03 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 2.01 as
being defeasible pursuant to such Sections 13.02 or 13.03, in accordance
with any applicable requirements provided pursuant to Section 2.01 and upon
compliance with the conditions set forth below in this Article. Any such
election shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 2.01 for such Securities.
SECTION 13.02 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case
may be, the Company shall be deemed to have been discharged from its
obligations with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 13.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of holders of such Securities to receive, solely
from the trust fund described in Section 13.04 and as more fully set forth
in such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 2.05, 2.06,
2.07, 4.01, 4.02 and 4.03, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any)
to have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 13.03 applied to such
Securities.
SECTION 13.03 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to
have this Section applied to any Securities or any series of Securities, as
the case may be, (1) the Company shall be released from its obligations
under Article Ten and any covenants provided pursuant to Sections
2.01(a)(16), 9.01(4) or 9.01(7) for the benefit of the holders of such
Securities and (2) the occurrence of any event specified in Sections
6.01(a)(3) (with respect to any of Article Ten and any such covenants
provided pursuant to Sections 2.01(a)(16), 9.01(4) or 9.01(7)) and
6.01(a)(6) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 13.04 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the
extent so specified in the case of Section 6.01(a)(3)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section
or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and
such Securities shall be unaffected thereby.
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 13.02 or Section 13.03 to any Securities or any series of
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which
satisfies the requirements contemplated by Section 7.09 and agrees
to comply with the provisions of this Article applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefits of the holders of such Securities, (A)
money in an amount, or (B) Government Obligations which through
the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C)
a combination thereof, in each case sufficient, in the opinion of
a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with
the terms of this Indenture and such Securities.
(2) In the event of an election to have Section 13.02
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling
or (B) since the date of this Indenture, there has been a change
in the applicable federal income tax law, in either case (A) or
(B) to the effect that, and based thereon such opinion shall
confirm that, the holders of such Securities will not recognize
gain or loss for federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 13.03
apply to any Securities or any series of Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the holders of such Securities will
not recognize gain or loss for federal income tax purposes as a
result of the deposit and Covenant Defeasance to be effected with
respect to such Securities and will be subject to federal income
tax on the same amount, in the same manner and at the same times
as would be the case if such deposit and Covenant Defeasance were
not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that it has been informed by
the relevant securities exchange(s) that neither such Securities
nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such
event specified in Section 6.01(a)(5), at any time on or prior to
the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any indenture or other agreement or instrument for borrowed money,
pursuant to which in excess of $100,000,000 principal amount is
then outstanding, to which the Company is a party or by which it
is bound.
(7) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company
Act unless such trust shall be registered under such Act or exempt
from registration thereunder.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
SECTION 13.05 Deposited Money and Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of Section 4.03(d), all money and
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section
and Section 13.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.04 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the
holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 13.04 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon request
of the Company any money or Government Obligations held by it as provided
in Section 13.04 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to effect
the Defeasance or Covenant Defeasance, as the case may be, with respect to
such Securities.
SECTION 13.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Sections 13.02 or 13.03 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article
with respect to such Securities, until such time as the Trustee or Paying
Agent is permitted to apply all money held in trust pursuant to Section
13.05 with respect to such Securities in accordance with this Article;
provided, however, that if the Company makes any payment of principal of or
any premium or interest on any such Security following such reinstatement
of its obligations, the Company shall be subrogated to the rights (if any)
of the holders of such Securities to receive such payment from the money so
held in trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind their respective successors and assigns, whether so expressed or not.
SECTION 14.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any Person
that shall at the time be the lawful sole successor of the Company.
SECTION 14.03 Notices.
Except as otherwise expressly provided herein any notice or demand
that by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the holders of Securities to or on the
Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: Unitrin,
Inc., Xxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, Attention: Chief Financial
Officer, with copies of any notice of an Event of Default to the attention
of the General Counsel at the same address. Any notice, election, request
or demand by the Company or any Securityholder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the Corporate Trust Office of the Trustee.
SECTION 14.04 Governing Law.
This Indenture and each Security shall be deemed to be a contract
made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 14.05 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this intention.
SECTION 14.06 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee
to take any action under any of the provisions of this Indenture, the
Company, shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as
to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2)
a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of
such Person, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
SECTION 14.07 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in
one or more indentures supplemental to this Indenture, in any case where
the date of maturity of interest or principal of any Security or the date
of redemption of any Security shall not be a Business Day, then payment of
interest or principal, and premium, if any, may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
SECTION 14.08 Conflict with Trust Indenture Act.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 14.09 Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.
SECTION 14.10 Separability.
In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 14.11 Assignment.
The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly
owned subsidiary of the Company, provided that, in the event of any such
assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01 Agreement to Subordinate.
The Company covenants and agrees, and each holder of Securities
issued hereunder and under any supplemental indenture or by any resolutions
by the Board of Directors ("Additional Provisions") by such holder's
acceptance thereof likewise covenants and agrees, that all Securities shall
be issued subject to the provisions of this Article Fifteen; and each
holder of a Security, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.
The payment by the Company of the principal of, premium, if any,
and interest on all Securities issued hereunder and under any Additional
Provisions shall, to the extent and in the manner hereinafter set forth, be
subordinate in right of payment to the prior payment in full of all Senior
Indebtedness of the Company, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence
of any default or Event of Default hereunder.
SECTION 15.02 Default on Senior Indebtedness.
In the event and during the continuation of any default by the
Company in the payment of principal, premium, interest or any other payment
due on any Senior Indebtedness of the Company, as the case may be, or in
the event that the maturity of any Senior Indebtedness of the Company, as
the case may be, has been accelerated because of a default, then, in either
case, no payment shall be made by the Company with respect to the principal
(including redemption and sinking fund payments) of, or premium, if any, or
interest on the Securities.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee when such payment is prohibited by the
preceding paragraph of this Section 15.02, before all Senior Indebtedness
is paid in full, such payment shall be held in trust for the benefit of,
and shall be paid over or delivered to, the holders of Senior Indebtedness
or their respective representatives, or to the trustee or trustees under
any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear.
SECTION 15.03 Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership, general assignment, marshaling of any
assets or liabilities for the benefit of creditors or other proceedings,
all amounts due upon all Senior Indebtedness of the Company shall first be
paid in full, or payment thereof provided for in money in accordance with
its terms, before any payment is made by the Company on account of the
principal, and premium, if any, or interest on the Securities; and upon any
such dissolution or winding-up or liquidation or reorganization, any
payment by the Company, or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the
holders or the Trustee would be entitled to receive from the Company,
except for the provisions of this Article Fifteen, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, or by the
holders or by the Trustee under the Indenture if received by them or it,
directly to the holders of Senior Indebtedness of the Company (pro rata to
such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Company) or their representative
or representatives, or to the trustee or trustees under any indenture
pursuant to which any instruments evidencing such Senior Indebtedness may
have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's
worth, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Indebtedness, before any payment or
distribution is made to the holders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee before all Senior Indebtedness of the Company is
paid in full, or provision is made for such payment in money in accordance
with its terms, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, and their
respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness of the Company, as
the case may be, remaining unpaid to the extent necessary to pay such
Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the
benefit of the holders of such Senior Indebtedness.
For purposes of this Article Fifteen, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company
as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Fifteen with respect to the Securities to the payment of all Senior
Indebtedness of the Company, as the case may be, that may at the time be
outstanding, provided that (i) such Senior Indebtedness is assumed by the
new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of such Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another
corporation upon the terms and conditions provided for in Article Ten of
this Indenture shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section 15.03 if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article Ten of this
Indenture. Nothing in Section 15.02 or in this Section 15.03 shall apply to
claims of, or payments, the Trustee under or pursuant to Section 7.06 of
this Indenture.
SECTION 15.04 Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the holders of the Securities shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments
or distributions of cash, property or securities of the Company, as the
case may be, applicable to such Senior Indebtedness until the principal of,
and premium, if any and interest on the Securities shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to
the holders of such Senior Indebtedness of any cash, property or securities
to which the holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Fifteen, and no payment over
pursuant to the provisions of this Article Fifteen to or for the benefit of
the holders of such Senior Indebtedness by holders of the Securities or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Securities, be
deemed to be a payment by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article Fifteen
are and are intended solely for the purposes of defining the relative
rights of the holders of the Securities, on the one hand, and the holders
of such Senior Indebtedness on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, any Additional Provisions or in the Securities is intended to or
shall impair, as between the Company, its creditors other than the holders
of Senior Indebtedness of the Company, and the holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay
to the holders of the Securities the principal of, and premium, if any and
interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect
the relative rights of the holders of the Securities and creditors of the
Company, as the case may be, other than the holders of Senior Indebtedness
of the Company, as the case may be, nor shall anything herein or therein
prevent the Trustee or the holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Fifteen of the
holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, as the case may be, received upon the exercise
of any such remedy.
Upon any payment or distribution of assets of the Company referred
to in this Article Fifteen, the Trustee, subject to the provisions of
Article Seven of this Indenture, and the holders shall be entitled to
conclusively rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidation trustee, agent or other Person making
such payment or distribution, delivered to the Trustee or to the holders,
for the purposes of ascertaining the Persons entitled to participate in
such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Fifteen.
SECTION 15.05 Trustee to Effectuate Subordination.
Each holder of Securities by such holder's acceptance thereof
authorizes and directs the Trustee on such holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fifteen and appoints the Trustee such holder's
attorney-in-fact for any and all such purposes.
SECTION 15.06 Notice by the Company.
The Company shall give prompt written notice to a Responsible
Officer of the Trustee of any fact known to the Company that would prohibit
the making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Fifteen.
Notwithstanding the provisions of this Article Fifteen or any other
provision of this Indenture or any Additional Provisions, the Trustee shall
not be charged with knowledge of the existence of any facts that would
prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article
Fifteen, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of
any such written notice, the Trustee, subject to the provisions of Article
Six of this Indenture, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 15.06 at least two
Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the
payment of the principal of, or premium, if any or interest on any debt
security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and
to apply the same to the purposes for which they were received, and shall
not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Article Seven of this
Indenture, shall be entitled to conclusively rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company, as the case may be (or a trustee on behalf of
such holder), to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Fifteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of such Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person
under this Article Fifteen, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 15.07 Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article Fifteen in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder
of Senior Indebtedness, and nothing in this Indenture or any Additional
Provisions shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company,
the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article Fifteen, and
no implied covenants or obligations with respect to the holders of such
Senior Indebtedness shall be read into this Indenture or any Additional
Provisions against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of such Senior Indebtedness and, subject to
the provisions of Article Seven of this Indenture, the Trustee shall not be
liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to holders, the Company or any other Person money or assets to
which any holder of such Senior Indebtedness shall be entitled by virtue of
this Article Fifteen or otherwise.
Nothing in this Article Fifteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
SECTION 15.08 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company, as the case may be, or by any
act or failure to act, in good faith, by any such holder of Securities, or
by any noncompliance by the Company, as the case may be, with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any
time and from time to time, without the consent of or notice to the Trustee
or the holders of Securities, without incurring responsibility to the
holders of Securities and without impairing or releasing the subordination
provided in this Article Fifteen or the obligations hereunder of the
holders of the Securities to the holders of such Senior Indebtedness, do
any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, such Senior
Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under
which such Senior Indebtedness is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person liable in any
manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company, as the case may be,
and any other Person.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
NITRIN, INC.
as Issuer
By:
-------------------------------------
Name:
Title:
Attest:
--------------------------
Name:
Title:
[---------------------],
as Trustee
By:
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Name:
Title:
Attest:
--------------------------
Name:
Title:
