1
EXHIBIT 4.1
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SERVICE CORPORATION INTERNATIONAL
AND
THE BANK OF NEW YORK
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1998 SENIOR INDENTURE
Dated as of ____ 1, ____
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2
CROSS REFERENCE SHEET*
Provisions of Trust Indenture Act of 1939 and 1998 Senior Indenture
to be dated as of ____ 1, ____ between SERVICE CORPORATION INTERNATIONAL and
THE BANK OF NEW YORK, Trustee:
SECTION OF THE ACT SECTION OF INDENTURE
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310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
310(a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 and 6.10(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(a) and (c)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13(b) and (c)
311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(a) and (b)(i) and (ii)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(a)(i), (ii), (iii), (iv), (v),
(vi) and (vii)
313(a)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
313(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
314(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
315(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.9
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
316(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not required
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
317(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5(a)
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
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* This Cross Reference Sheet is not part of the Indenture.
3
TABLE OF CONTENTS
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capitalized Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Current Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Current Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Non-Recourse Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Non-Recourse Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original issue discount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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* This Table of Contents is not part of the Indenture.
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4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Record date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.4 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.7 Denomination and Date of Securities; Payments of Interest . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.10 Cancellation of Securities; Disposition Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.12 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.2 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.3 Office for Notices and Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.5 Provision as to Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.6 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.7 Limitation on Sale and Leaseback Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.8 Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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* This Table of Contents is not part of the Indenture.
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SECTION 3.9 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 3.10 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders . . . . . . . . . 20
SECTION 4.2 Preservation and Disclosure of Securityholders Lists . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.2 Payment of Securities on Default; Suit Therefor . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 5.3 Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 5.4 Proceedings by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.5 Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.6 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 5.7 Direction of Proceedings; Waiver of Defaults by Majority of Securityholders . . . . . . . . . . . . 28
Section 5.8 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.9 Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default . . . . . . . . . . . . 30
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim . . . . . . . . . . . . . . . . . . 32
SECTION 6.7 Right of Trustee to Rely on Officer's Certificate, etc. . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.8 Qualification of Trustee; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 6.9 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee . . . . . . . . . . . . . . . 40
SECTION 6.13 Preferential Collection of Claims Against the Issuer . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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* This Table of Contents is not part of the Indenture.
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ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities . . . . . . . . . . . . . . . . . . . 44
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.4 Securities Owned by issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 7.6 Record Date for Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.2 Supplemental Indentures With Consent of Securityholders . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.4 Documents to be Given to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 48
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc. on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.2 Securities to be Secured in Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.3 Successor Corporation to be Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 9.4 Opinion of Counsel to be Given Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities . . . . . . . . . . . . . . . . 52
SECTION 10.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years . . . . . . . . . . . . . 52
SECTION 10.5 Indemnity for U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities . . . . . . . . . 53
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities . . . . . . . . . . . . . . . . . 53
SECTION 11.5 Officer's Certificates and Opinions of Counsel; Statements to be Contained Therein . . . . . . . . . 54
__________________________
* This Table of Contents is not part of the Indenture.
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SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . 55
SECTION 11.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 11.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 12.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption . . . . . . . . . . . . . 57
SECTION 12.5 Mandatory of Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
__________________________
* This Table of Contents is not part of the Indenture.
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THIS 1998 SENIOR INDENTURE, dated as of ____ 1, ____ between SERVICE
CORPORATION INTERNATIONAL, a Texas corporation (the "Issuer"), and THE BANK OF
NEW YORK, a New York banking corporation, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the 'Securities') up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 For all purposes of this Indenture and of any
indenture supplemental hereto, the following terms shall have the respective
meanings specified in this Section 1.1 (except as otherwise expressly provided
or unless the context otherwise clearly requires). All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933, shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture (except as herein
otherwise expressly provided or unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the date of
execution and delivery of this Indenture.
The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision. The expressions "date of this
Indenture", "date hereof", "date as of which this Indenture is dated" and "date
of execution and delivery of this Indenture" and other expressions of similar
import refer to the effective date of the original execution and delivery of
this Indenture, viz. ________ 1, ____.
The terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Assets" means any property of the Issuer or a Subsidiary used in
businesses in which the Issuer and its Subsidiaries are engaged at the date of
execution and delivery of this Indenture.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code sec. 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect.
"Business Day" means, with respect to any Security, a day that (a) in
the Place of Payment (or in any of the Places of Payment, if more than one) in
which amounts are payable, as specified in the form of such Security, and (b)
in the city in which the Corporate Trust Office is located, is not a day on
which banking institutions are authorized or required by law or regulation to
close.
"Capitalized Lease" means any lease of property where the obligations
of the lessee thereunder are required to be classified and accounted for as a
capitalized lease on a balance sheet of such lessee under generally accepted
accounting principles.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Consolidated Assets" means, as to any Person, total consolidated
assets (including assets subject to Capitalized Leases) of such Person and of
its Consolidated Subsidiaries, as determined in accordance with generally
accepted accounting principles.
"Consolidated Subsidiary" means, as to any Person, each Subsidiary of
such Person the accounts of which are or should be consolidated with the
accounts of such Person in reporting the consolidated financial statements of
such Person in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New
York 10286, Attention: Corporate Trust Administration.
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The term "covenant" shall have the meaning set forth in Section 3.1.
"Current Assets" of any Person includes all assets of such Person
which would in accordance with generally accepted accounting principles be
classified as current assets.
"Current Liabilities" of any Person includes all liabilities of such
Person which would in accordance with generally accepted accounting principles
be classified as current liabilities.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and, if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the Global
Securities of such series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Funded Debt" means Indebtedness for money borrowed which by its terms
matures at or is extendible or renewable at the option of the obligor to a date
more than 12 months after the date of the creation of such Indebtedness.
"Global Security" means a Security evidencing all or a part of a
series of Securities issued to the Depositary for such series in accordance
with Section 2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the Person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indebtedness" means, with respect to any Person,
(a) (i) the principal of and interest and premium, if
any, on indebtedness for money borrowed of such Person evidenced by
bonds, notes, debentures or similar obligations, including any
guaranty by such Person of any indebtedness for money borrowed of any
other Person, whether any such indebtedness or guaranty is outstanding
on the date of this Indenture or is thereafter created, assumed or
incurred, (ii) the principal of and interest and premium, if any, on
indebtedness for money. borrowed, incurred, assumed or guaranteed by
such Person in connection with the acquisition by it or any of its
subsidiaries of any other businesses, properties or other assets and
(iii) lease obligations which such Person capitalizes in accordance
with Statement of Financial Accounting Standards No. 13 promulgated by
the Financial Accounting Standards Board or such other generally
accepted accounting principles as may be from time to time in effect;
(b) any other indebtedness of such Person, including any
indebtedness representing the balance deferred and unpaid of the
purchase price of any property or interest therein, including any such
balance that constitutes a trade account payable, and any guaranty,
endorsement or other contingent obligation of such Person in respect
of any indebtedness of another, which is outstanding on the date of
this Indenture or is thereafter created, assumed or incurred by such
Person; and
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(c) any amendments, modifications, refundings, renewals
or extensions of any indebtedness or obligation described as
Indebtedness in clause (a) or (b) above.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented or both, including, for all purposes of this instrument and any
such supplement, the provisions of the Trust Indenture Act of 1939 that are
deemed to be a part of and govern this instrument and any such supplement,
respectively, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
The term "interest" means, when used with respect to non-interest
bearing Securities (including, without limitation, any Original Issue Discount
Security which by its terms bears interest only after maturity or upon default
in any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuer becomes obligated to acquire a
Security, whether by purchase or otherwise.
"Issuer" means (except as otherwise provided in Section 6.8) Service
corporation International, a Texas corporation, and, subject to Article Nine,
its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president, any vice president or the treasurer of the Issuer.
"Non-Recourse Indebtedness" means indebtedness where (i) the holders
of such indebtedness agree that they will look solely to the property securing
such indebtedness (and to a Non-Recourse Subsidiary) for payment on or in
respect of such indebtedness, and (ii) no default with respect to such
indebtedness (including any rights which the holders thereof may have to take
enforcement action against a Non-Recourse Subsidiary) would permit (after
notice or passage of time or both), according to the terms thereof, any holder
of any Indebtedness for money borrowed of the Issuer or any Subsidiary to
declare a default on such Indebtedness for money borrowed or cause the payment
thereof to be accelerated or payable prior to its stated maturity.
"Non-Recourse Subsidiary" means a Subsidiary or an Affiliate
established for the purpose of acquiring or investing in property securing
Non-Recourse Indebtedness and substantially all of the assets of which consist
of such property.
"Officer's Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5, if and to the extent required by the provisions of such
Section 11.5. One of the officers signing any Officer's Certificate given
pursuant to Section 4.3 shall be the principal executive, financial or
accounting officer of the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the general
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each
such opinion shall include the statements provided for in Section 11.5, if and
to the extent required by the provisions of such Section 11.5.
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The term "original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
The term "original issue discount" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face of
such Security).
"Original Issue Discount Security" means any Security that 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 5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when used
with reference to Securities, shall, subject to the provisions of Section 7.4,
mean, as of any particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to
which the provisions of Article Ten hereof shall not be applicable),
or portions thereof for the payment or redemption of which moneys or
U.S. Government Obligations (as provided for in Section 10.1) in the
necessary amount shall have been deposited in trust with the Trustee
or with any Paying Agent (other than the Issuer) or shall have been
set aside, segregated and held in trust by the Issuer for the Holders
of such Securities (if the Issuer shall act as its own Paying Agent),
provided that, if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption
shall have been given as herein provided, or provision satisfactory to
the Trustee shall have been made for giving such notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.9 (except with
respect to any such Security as to which proof satisfactory to the
Trustee is presented that such Security is held by a Person in whose
hands such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding for such purposes shall be the portion of the
principal amount thereof that would be due and payable as of the date of such
determination (as certified by the Issuer to the Trustee) upon a declaration of
acceleration of the maturity thereof pursuant to Section 5.1.
"Paying Agent" shall have the meaning set forth in Section 3.3.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated
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maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
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 interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
The term "principal" of a debt security, including any Security, means
the amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect
to such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Issuer, upon any purchase or exchange at the option of the Issuer
or the holder of such debt security and upon any acceleration of the maturity
of such debt security).
The term "principal amount" of a debt security, including any
Security, means the principal amount as set forth on the face of such debt
security.
The term "record date" shall have the meaning set forth in Section
2.7.
"Registrar" shall have the meaning set forth in Section 3.3.
"Responsible Officer", when used with respect to the Trustee, means
any officer assigned by the Trustee to administer its corporate trust matters.
"Security" or "Securities" (except as otherwise provided in Section
6.8) has the meaning stated in the first recital of this Indenture or, as the
case may be, Securities that have been authenticated and delivered pursuant to
this Indenture.
"Senior Debt" means Indebtedness which is not (i) Indebtedness of the
Issuer to any Subsidiary and (ii) Indebtedness of the Issuer which by its terms
is subordinate or junior in any respect to any other Indebtedness or other
obligation of the Issuer.
"Subsidiary" means any corporation of which the Issuer, or the Issuer
and one or more Subsidiaries, or any one or more Subsidiaries, directly or
indirectly own voting securities entitling any one or more of the Issuer and
its Subsidiaries to elect a majority of the directors of such corporation,
either at all times or so long as there is no default or contingency which
permits the holders of any other class or classes of securities to vote for the
election of one or more directors.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the
Trust Indenture Reform Act of 1990, as in force at the date as of which this
Indenture is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. Trustee" shall also mean or include each
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Person who is then a trustee hereunder and, if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the trustee with respect to the Securities of such series.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
The term "vice president", when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"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, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall
be substantially in such form (not inconsistent with this Indenture) as shall
be established by or pursuant to one or more Board Resolutions (as set forth in
a Board Resolution or, to the extent established pursuant to rather than set
forth in a Board Resolution, an Officer's Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have imprinted or
otherwise reproduced thereon such legend or legends or endorsements, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as may
be determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be
substantially as follows:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By
------------------------------------------
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
certificate of authentication which shall be substantially as follows:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By
----------------------------------------
as Authenticating Agent
By
----------------------------------------
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities
of each such series shall rank equally and pari passu as to the right of
payment of principal and interest, if any, with the Securities of each other
series and with all other Senior Debt of the Issuer. There shall be established
in or pursuant to one or more Board Resolutions (and to the extent established
pursuant to rather than set forth in a Board Resolution, in an Officer's
Certificate detailing such establishment) or established in one or more
indentures supplemental hereto, prior to the initial issuance of Securities of
any series:
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
12.3);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from which any
such interest shall accrue, the date or dates on which any such
interest shall be payable and the date or dates on which a record
shall be taken for the determination of Holders to whom any such
interest is payable or the method by which such rate or rates or date
or dates shall be determined or both;
(5) the place or places where and the manner in which the
principal of and interest, if any, on Securities of the series shall
be payable and the office or agency for the Securities of the series
maintained by the Issuer pursuant to Section 3.3 (if other than as
provided in Section 3.3);
(6) the right, if any, of the Issuer to redeem, purchase
or repay Securities of the series, in whole or in part, at its option
and the period or periods within which, the price or prices (or the
method by which such price or prices shall be determined or both) at
which, the form or method of payment therefor, if other than in cash
and any terms and conditions upon which and the manner in
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16
which (if different from the provisions of Article Twelve) Securities
of the series may be so redeemed, purchased or repaid, in whole or in
part, pursuant to any sinking fund or otherwise;
(7) any provisions relating to the issuance of Securities
of such series at an original issue discount (including, without
limitation, the issue price thereof, the rate or rates at which such
original issue discount shall accrue, if any, and the date or dates
from or to which or period or periods during which such original issue
discount shall accrue at such rate or rates);
(8) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series, in whole or in part,
pursuant to any mandatory redemption, sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices (or the method by which such
price or prices shall be determined or both) at which, the form or
method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the
provisions of Article Twelve) Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon acceleration of the maturity thereof,
(11) whether Securities of the series will be issuable as
Global Securities;
(12) if the Securities of such series are to be issuable
in definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(13) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(14) any deleted, modified or additional events of default
or remedies or any deleted, modified or additional covenants with
respect to the Securities of such series;
(15) whether the provisions of Section 10.1(C) will be
applicable to Securities of such series;
(16) if the amounts of payments of principal and interest
on the Securities of such series are to be determined with reference
to an index, the manner in which such amounts shall be determined; and
(17) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officer's Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be
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issued at the same time and may be issued from time to time, consistent with
the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officer's Certificate or in any such indenture supplemental
hereto.
Any such Board Resolution or Officer's Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before
the initial issuance of the Securities of such series shall be incorporated
herein by reference with respect to Securities of such series and shall
thereafter be deemed to be a part of this Indenture for all purposes relating
to Securities of such series as fully as if such Board Resolution or Officers
Certificate were set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication together with the applicable documents referred to
below in this Section 2.4, and the Trustee shall thereupon authenticate and
deliver such Securities to, or upon the order of, the Issuer (contained in the
Issuer Order referred to below in this Section 2.4) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be specified
from time to time by an Issuer Order. The maturity date, original issue date,
interest rate, if any, and any other terms of the Securities of such series
shall be determined by or pursuant to such Issuer Order and procedures. In
authenticating the Securities of such series and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and
(4) below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities of such series
are not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant
to procedures acceptable to the Trustee as may be specified from time
to time by an Issuer Order, (c) the maturity date or dates, original
issue date or dates, interest rate or rates, if any, and any other
terms of Securities of such series shall be determined by an Issuer
Order or pursuant to such procedures, (d) if provided for in such
procedures, such Issuer Order may authorize authentication and
delivery pursuant to electronic instructions from the Issuer or its
duly authorized agent or agents and (e) after the original issuance of
the first Security of such series to be issued, any separate request
by the Issuer that the Trustee authenticate Securities of such series
for original issuance will be deemed to be a certification by the
Issuer that it is in compliance with all conditions precedent provided
for in this Indenture relating to the authentication and delivery of
such Securities;
(2) the Board Resolution, Officer's Certificate or
executed supplemental indenture referred to in Sections 2.1 and 2.3 by
or pursuant to which the form or forms and terms of the Securities of
such series were established;
(3) an Officer's Certificate setting forth the form or
forms and terms of the Securities stating that the form or forms and
terms of the Securities have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture and covering such other matters
as the Trustee may reasonably request; and
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(4) at the option of the Issuer, either an Opinion of
Counsel, or a letter from legal counsel addressed to the Trustee
permitting it to rely on an Opinion of Counsel, substantially to the
effect that:
(a) the form or forms of the Securities of such
series have been duly authorized and established in conformity
with the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities of such series have been duly
authorized and established in conformity with the provisions
of this Indenture, and, in the case of an offering that is not
underwritten, certain terms of the Securities of such series
have been established pursuant to a Board Resolution, an
Officer's Certificate or a supplemental indenture in
accordance with this Indenture, and when such other terms as
are to be established pursuant to procedures set forth in an
Issuer Order shall have been established, all such terms will
have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
(c) when the Securities of such series have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, they will have
been duly issued under this Indenture and will be valid and
legally binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled
to the benefits of this Indenture, and
(d) the execution and delivery by the Issuer of,
and the performance by the Issuer of its obligations under,
the Securities of such series will not contravene any
provision of applicable law or the articles of incorporation
or by-laws of the Issuer or any agreement or other instrument
binding upon the Issuer or any of its Subsidiaries that is
material to the Issuer and its Subsidiaries, considered as one
enterprise, or, to such counsel's knowledge after the inquiry
indicated therein, any judgment, order or decree of any
governmental agency or any court having jurisdiction over the
Issuer or any Subsidiary, and no consent approval or
authorization of any governmental body or agency is required
for the performance by the Issuer of its obligations under the
Securities, except such as are specified and have been
obtained and such as may be required by the securities or blue
sky laws of the various states in connection with the offer
and sale of the Securities.
In rendering such opinions, such counsel may qualify any opinions as
to enforceability by stating that such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the State of Texas
and the federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be counsel
reasonably satisfactory to the Trustee, in which case the opinion shall state
that such counsel believes that both such counsel and the Trustee are entitled
so to rely. Such counsel may also state that insofar as such opinion involves
factual matters, such counsel has relied, to the extent such counsel deems
proper, upon certificates of officers of the Issuer and its Subsidiaries and
certificates of public officials.
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The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section 2.4 if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
by the Issuer or if the Trustee in good faith by its board of directors or
board of trustees, executive committee or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would expose
the Trustee to personal liability to existing Holders or would adversely affect
the Trustee's own rights, duties or immunities under the Securities, this
Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary, or a nominee of such successor Depositary.'
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer, under its
corporate seal which may, but need not, be attested by its secretary or one of
its assistant secretaries. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities
as shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee, or its Authenticating Agent, upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled
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to the benefits of this Indenture. Each reference in this Indenture to
authentication by the Trustee includes authentication by an agent appointed
pursuant to Section 6.14
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable in registered form
in denominations established as contemplated by Section 2.3 or, with respect to
the Securities of any series, if not so established, in denominations of $1,000
and any integral multiple thereof. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities for such
series are registered (a) at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the Holders of Securities not less than 15 days
preceding such subsequent record date or (b) as determined by such other
procedure as is mutually acceptable to the Issuer and the Trustee. The term
"record date" as used with respect to any interest payment date (except a date
for payment of defaulted interest) for the Securities of any series shall mean
the date specified as such in the terms of the Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the next preceding calendar month or, if such
interest payment date is the fifteenth day of a calendar month, the first day
of such calendar month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will
keep at the office of each Registrar for each series of Securities a register
or registers in which, subject to such reasonable regulations as it may
prescribe, it will provide for the registration of Securities of each series
and the registration of transfer of Securities of such series. Each such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection and
available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at the office of any Registrar, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series, maturity date,
interest rate, if any, and original issue date in authorized denominations for
a like aggregate principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied
by a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
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At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the office of the Registrar.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer of Securities. No service charge shall be made for
any such transaction or for any exchange of Securities of any series as
contemplated by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Security
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to Section
2.3 that such Securities be represented by one or more Global Securities shall
no longer be effective and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities representing such Securities in
exchange for such Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event the Issuer shall execute, and the Trustee, upon receipt of an
Officer's Certificate for the authentication and delivery of definitive
Securities of such series, shall authenticate and deliver, Securities of such
series in definitive registered form, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such Securities, in exchange for such Global
Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole
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or in part for Securities of the same series in definitive registered form on
such terms as are acceptable to the Issuer and such Depositary. Thereupon, the
Issuer shall execute, and the Trustee shall authenticate and deliver, without
service charge,
(i) to the Person specified by such Depositary, a new
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to clause
(i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities
in definitive registered form issued in exchange for a Global Security pursuant
to this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver at its office such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities
shall be valid and legally binding obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such transfer or exchange.
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate, if any, and original issue date, bearing
a number or other distinguishing symbol not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and in substitution for the Security so destroyed, lost or stolen. In every
case the applicant for a substitute Security shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by the Trustee to indemnify and defend and to save
each of the Trustee and the Issuer harmless and, in every case of destruction,
loss or theft, evidence to their satisfaction of the destruction, loss or theft
of such Security and of the ownership thereof and in the case of mutilation or
defacement, shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen the Issuer 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 or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
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Every substitute Security of any series issued pursuant to the
provisions of this Section 2.9 by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced, destroyed, lost or stolen Securities and shall
preclude 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 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, purchase, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities held by it, or hold such
Securities in accordance with its standard retention policy, and deliver a
certificate of disposition or retention to the Issuer. If the Issuer or its
agent shall acquire any of the Securities, 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 or its agent
for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by
the execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.3 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3.
SECTION 2.12 Computation of Interest. Except as otherwise
specified as contemplated by Section 2.1 for Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
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ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Covenants. The term "covenant", whenever used herein
with respect to the covenants of the Issuer applicable to Securities of any
series, includes without limitation the covenants set forth in this Article
Three, unless it is either inapplicable to a particular series or it is
specifically deleted, or modified in or pursuant to the Board Resolution or
supplemental indenture establishing such series of Securities or in the form of
Security for such series.
SECTION 3.2 Payment of Principal and Interest. The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and interest, if any, on each of the Securities at the place,
at the respective times and in the manner provided in the Securities.
SECTION 3.3 Office for Notices and Payments, etc. So long as any
of the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment
("Paying Agent"), an office or agency where the Securities may be presented for
registration of transfer and for exchange ("Registrar") as in this Indenture
provided, and an office or agency where notices and demands to or upon the
Issuer in respect of the Securities or of this Indenture may be served. In case
the Issuer shall at any time fail to maintain any such office or agency, or
shall fail to give notice to the Trustee of any change in the location thereof,
presentation may be made and notice and demand may be served in respect of the
Securities or of this Indenture at the Corporate Trust Office. The Issuer
hereby initially designates the Corporate Trust Office for each such purpose
and appoints the Trustee as Registrar, Paying Agent and as the agent upon whom
notices and demands may be served with respect to the Securities.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer
shall appoint a Paying Agent other than the Trustee, it will cause 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 3.5,
(1) that it will hold all sums held by it as such agent
for the payment of the principal of or interest, if any, on the
Securities (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities or the Trustee; and
(2) that it will give the Trustee notice of any failure
by the Issuer (or by any other obligor on the Securities) to make any
payment of the principal of or interest, if any, on the Securities
when the same shall be due and payable; and
(3) that it will, at any time during the continuance of
any such failure, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying Agent.
(b) If the Issuer shall act as its own Paying Agent, it will, on
or before each due date of the principal of or interest, if any, on the
Securities, set aside, segregate and hold in trust for the benefit of the
Holders of the Securities a sum sufficient to pay such principal or interest,
if any, so becoming due and will
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notify the Trustee of any failure to take such action and of any failure by the
Issuer (or by any other obligor under the Securities) to make any payment of
the principal of or interest, if any, on the Securities when the same shall
become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding,
the Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any Paying Agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding,
any agreement of the Trustee or any Paying Agent to hold sums in trust as
provided in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more Paying Agents, it
will, on or before each due date of the principal of or interest, if any, on
any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal or interest, if any, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal or interest, if any;
and (unless such Paying Agent is the Trustee) the Issuer will promptly notify
the Trustee of its action or failure so to act.
SECTION 3.6 Limitation on Liens. The Issuer will not mortgage,
pledge, encumber or subject to any lien or security interest, and no Subsidiary
will mortgage, pledge, encumber or subject to any lien or security interest to
secure any obligation of the Issuer or any obligation of any Subsidiary (other
than obligations owing to the Issuer or a wholly-owned Subsidiary) any assets,
whether owned on February 1, 1993, or thereafter acquired, without effectively
providing that the Securities (for this purpose, if the Securities of that
series are Original Issue Discount Securities, the principal amount of the
Securities of that series shall be computed and adjusted as may be specified in
the terms of that series) shall thereby be secured equally and ratably
(computed and adjusted as aforesaid) with (or prior to) any other obligation so
secured, unless, after giving effect thereto, the aggregate amount of all such
secured debt of the Issuer and its Subsidiaries (excluding secured Indebtedness
existing as of February 1, 1993 and any extensions, renewals or refundings
thereof that do not increase the principal amount of Indebtedness so extended,
renewed or refunded and excluding secured Indebtedness incurred pursuant to
subparagraphs (a), (b), (c) and (d) below), would not exceed 10% of
Consolidated Assets of the Issuer and its Subsidiaries; provided however, that
nothing in this Section 3.6 shall prevent the Issuer or any Subsidiary.
(a) from acquiring and retaining property subject to
mortgages, pledges, encumbrances, liens or security interests existing thereon
at the date of acquisition thereof, or from creating mortgages, pledges,
encumbrances or liens upon property acquired by it within one year of the date
of acquisition thereof to secure debt which does not exceed the aggregate
acquisition price (including without duplication any debt assumed in connection
with such acquisition or otherwise existing with respect to the acquired
property) of all property so encumbered;
(b) from mortgaging, pledging, encumbering or subjecting
to any lien or security interest Current Assets to secure Current Liabilities;
(c) from extending, renewing or refunding any
Indebtedness secured by a mortgage, pledge, encumbrance, lien or security
interest on the same property theretofore subject thereto, provided that the
principal amount of such Indebtedness so extended, renewed or refunded shall
not be increased; or
(d) from securing the payment of workmen's compensation
or insurance premiums or from making good faith pledges or deposits in
connection with bids, tenders, contracts (other than contracts
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for the payment of money) or leases, deposits to secure public or statutory
obligations, deposits to secure surety or appeal bonds, pledges or deposits in
connection with contracts made with or at the request of the United States
Government or any agency thereof, or pledges or deposits for similar purposes
in the ordinary course of business.
SECTION 3.7 Limitation on Sale and Leaseback Arrangements.
Neither the Issuer nor any Subsidiary will enter into any transaction with any
bank, insurance company or other lender or investor, or to which any such
lender or investor is a party, providing for the leasing to the Issuer or a
Subsidiary of any real property (except a lease for a temporary period not to
exceed three years by the end of which it is intended that the use of such real
property by the lessee will be discontinued) which has been or is to be sold or
transferred by the Issuer or such Subsidiary to such lender or investor or to
any person to whom funds have been or are to be advanced by such lender or
investor on the security of such real property unless, either:
(1) such transaction is the substantial equivalent of a
mortgage, pledge, encumbrance, lien or security interest which the
Issuer or any Subsidiary would have been permitted to create under
Section 3.6 without equally and ratably securing the Securities, or
(2) the Issuer within 120 days after such transaction
applied (and in any such case the Issuer covenants that it will so
apply) an amount equal to the greater of (i) the net proceeds of the
sale of the real property leased pursuant to such transaction or (ii)
the fair value of the real property so leased at the time of entering
into such transaction (as determined by the Board of Directors), to
the retirement of Funded Debt of the Issuer; provided that the amount
to be applied to the retirement of Funded Debt of the Issuer shall be
reduced by:
(a) the principal amount of any Securities (for
this purpose if the Securities of that series are
Original Issue Discount Securities, the principal
amount of the Outstanding Securities of that series
shall be computed and adjusted as may be specified in
the terms of that series) delivered within 120 days
after such sale to the Trustee for retirement and
cancellation, together with an Officer's Certificate
stating that the Issuer has elected to have credited
against such retirement of Funded Debt the principal
amount of Securities so delivered and that such
Securities do not include any Securities theretofore
redeemed or called for redemption, and
(b) the principal amount of Funded Debt, other
than Securities, voluntarily retired by the Issuer
within 120 days after such sale; provided that no
retirement referred to in this clause (2) may be
effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory
prepayment provision.
SECTION 3.8 Corporate Existence. Subject to, and except as
otherwise provided in, Article Nine, the Issuer will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, and franchise to be a corporation, and will remain qualified as a
foreign corporation in good standing in each jurisdiction wherein the ownership
of its assets or the conduct of its business requires it to be so qualified,
except where the failure to so qualify would not have a material adverse effect
on the Issuer and its Subsidiaries taken as a whole.
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SECTION 3.9 Maintenance of Properties. The Issuer will cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Issuer from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Issuer,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 3.10 Payment of Taxes and Other Claims. The Issuer will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied
or imposed upon the Issuer or any Subsidiary or upon the income, profits or
property of the Issuer or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Issuer or any Subsidiary, provided, however, that the Issuer
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities covenant and agree that they will furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company or
any of its Paying Agents other than the Trustee regarding the names and
addresses of the Holders of the Securities of each series as of a date not more
than 15 days prior to the time such list is furnished:
(a) semiannually and not more than 15 days after each
January I and July 1; and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request;
provided that if and so long as the Trustee shall be the Registrar for such
series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists.
(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
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 4.1, and (ii) received by it in the capacity of
Registrar or Paying Agent for such series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of a
new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security for a
period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with Holders of all Securities with respect
to their rights under this Indenture or under such Securities, and such
application is accompanied by a copy of
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the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall within five Business Days after the receipt of
such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number
of Holders of Securities of such series or of all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the
provisions of subsection (a) of this Section 4.2, and as to the
approximate cost of mailing to such Securityholders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Securities, as the case may be, whose name and address appears in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.2, a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
(Securities of such series or of all Securities, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with the provisions of
subsection (b) of this Section 4.2, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under such subsection
(b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Issuer is not required to file information, documents
or reports pursuant to either of such Sections, then to file with the Trustee
and the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the
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supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a debt security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a) and (b)
of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less than annually, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his knowledge of the Issuer's compliance
with all conditions and covenants under this Indenture. For purposes of this
subsection (d), such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee (a) Within 60 days after
September 15 of each year commencing with the year 1999, the Trustee shall
transmit by mail to the Holders of Securities, as provided in subsection (c) of
this Section 4.4, a brief report dated as of such September 15 with respect to
any of the following events which may have occurred within the last 12 months
(but if no such event has occurred within such period, no report need be
transmitted):
(i) any change to its eligibility under Section 6.9 and
its qualification under Section 6.8;
(ii) the creation of, or any material change to, a
relationship specified in paragraph (i) through (x) of Section 6.8(c);
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of all Securities Outstanding on the
date of such report;
(iv) the amount, interest rate, if any, and maturity date
of all other indebtedness owing by the Issuer (or by any other obligor
on the Securities) to the Trustee in its individual capacity on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in Section
6.13(b)(2), (3), (4) or (6);
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(v) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the date of
such report;
(vi) any additional issue of Securities which the Trustee
has not previously reported, and
(vii) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Section 5.8.
(b) The Trustee shall transmit to the Securityholders of each
series, as provided in subsection (c) of this Section 4.4, a brief report with
respect to the character and amount of any advances (and if the Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section 4.4 (or if no such report has yet
been so transmitted, since the date of this Indenture) for the reimbursement of
which it claims or may claim a lien or charge prior to that of the Securities
of such series on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this subsection (b), except
that the Trustee shall not be required (but may elect) to report such advances
if such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of all Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(i) to all Holders of Securities, as the names and
addresses of such Holders appear upon the registry books of the
Issuer; and
(ii) to all other Persons to whom such reports are
required to be transmitted pursuant to Section 313(c) of the Trust
Indenture Act of 1939.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of any applicable
series are listed and also with the Commission. The Issuer agrees to notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein with respect to Securities of any series, means any one or more of the
following events, unless it is either inapplicable to a particular series or it
is specifically deleted or modified in or pursuant to the Board Resolution or
supplemental indenture establishing such series of Securities or in the form of
Security for such series:
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
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(b) default in the payment of the principal of any of the
Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) default in the payment or satisfaction of any sinking
fund or other purchase obligation with respect to Securities of such
series, as and when such obligation shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer in the Securities of such series or in this Indenture continued
for a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Issuer by the Trustee by registered or certified mail, or to the
Issuer and the Trustee by the Holders of at least 25 percent in
aggregate principal amount of the Securities of such series then
Outstanding; or
(e) without the consent of the Issuer a court having
jurisdiction shall enter an order for relief with respect to the
Issuer under the Bankruptcy Code or without the consent of the Issuer
a court having jurisdiction shall enter a judgement order or decree
adjudging the Issuer a bankrupt or insolvent, or enter an order for
relief for reorganization, arrangement, adjustment or composition of
or in respect of the Issuer under the Bankruptcy Code or applicable
state insolvency law and the continuance of any such judgment, order
or decree is unstayed and in effect for a period of 60 consecutive
days; or
(f) the Issuer shall institute proceedings for entry of
an order for relief with respect to the Issuer under the Bankruptcy
Code or for an adjudication of insolvency, or shall consent to the
institution of bankruptcy or insolvency proceedings against it, or
shall file a petition seeking, or seek or consent to reorganization,
arrangement, composition or relief under the Bankruptcy Code or any
applicable state law, or shall consent to filing of such petition or
to the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer or of
substantially all of its property, or the Issuer shall make a general
assignment for the benefit of creditors as recognized under the
Bankruptcy Code; or
(g) default under any bond, debenture, note or other
evidence of Indebtedness for money borrowed by the Issuer or any
Subsidiary or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Issuer or any Subsidiary (other
than Non-Recourse Indebtedness), whether such Indebtedness exists on
the date hereof or shall hereafter be created, which default shall
have resulted in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, or any default in payment of such Indebtedness (after the
expiration of any applicable grace periods and the presentation of any
debt instruments, if required), if the aggregate amount of all such
Indebtedness which has been so accelerated and with respect to which
there has been such a default in payment shall exceed $50,000,000,
without each such default and acceleration having been rescinded or
annulled within a period of 30 days after there shall have been given
to the Issuer by the Trustee by registered mail, or to the Issuer and
the Trustee by the Holders of at least 25 percent in aggregate
principal amount of the Securities of such series then Outstanding, a
written notice specifying each such default and
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requiring the Issuer to cause each such default and acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(h) any other Event of Default provided with respect to
the Securities of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25
percent in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the unpaid principal amount (or, if the
Securities of such series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of such series) of all
the Securities of such series and the interest, if any, accrued thereon to be
due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this Indenture or
in the Securities of such series contained to the contrary notwithstanding.
This provision, however, is subject to the condition that, if at any time after
the unpaid principal amount (or such specified amount) of the Securities of
such 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 Issuer shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest, if any, upon all
of the Securities of such series and the principal of any and all Securities of
such series which shall have become due otherwise than by acceleration (with
interest on overdue installments of interest, if any, to the extent that
payment of such interest is enforceable under applicable law and on such
principal at the rate borne by the Securities of such series to the date of
such payment or deposit) and the reasonable compensation, disbursements,
expenses and advances of the Trustee, and any and all defaults under this
Indenture, other than the nonpayment of such portion of the principal amount of
and accrued interest, if any, on Securities of such series which shall have
become due by acceleration, shall have been cured or shall have been waived in
accordance with Section 5.7 or provision deemed by the Trustee to be adequate
shall have been made therefor then and in every such case the Holders of a
majority in aggregate principal amount of the Securities of such series then
Outstanding, by written notice to the Issuer and to the Trustee, may rescind
and annul such declaration and its consequences; but no such rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. If any Event of Default with respect to
the Issuer specified in Section 5.1(e) or 5.1(f) occurs, the unpaid principal
amount (or, if the Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of each such series) and accrued interest on all Securities of
each series then Outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act by the Trustee or any
Securityholder.
If the Trustee shall have proceeded to enforce any right 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
Issuer, the Trustee and the Securityholders shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1(a),
(b) or (c), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a Paying Agent or any Securityholder.
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SECTION 5.2 Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a), if default shall be made in the payment of any
installment of interest upon any of the Securities of any series then
Outstanding as and when the same shall become due and payable, and such default
shall have continued for a period of 30 days, or (b) if default shall be made
in the payment of the principal of any of the Securities of such series as and
when the same shall have become due and payable, whether at maturity of the
Securities of such series or upon redemption or by declaration or otherwise -
then, upon demand of the Trustee, the Issuer will pay to the Trustee, for the
benefit of the Holders of the Securities, the whole amount that then shall have
become due and payable on all such Securities of such series for principal or
interest, if any, or both, as the case may be, with interest upon the overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest, if any, at the rate
borne by the Securities of such series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder
other than through its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sum 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 Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other
obligor on the Securities of such series, its or their creditors, or its or
their property, and to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses, and any receiver, assignee or trustee or
similar official in bankruptcy or reorganization is hereby authorized by each
of the Securityholders to make such payments to the Trustee, and, if the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due it for compensation and
expenses, including counsel fees incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses and counsel fees out of the estate in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, moneys, securities
and other property which the Holders of the Securities of such series may be
entitled to receive in such proceedings, whether in liquidation or under any
plan of reorganization or arrangement or otherwise.
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All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the 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 be for the ratable benefit of the Holders of
the Securities of the series in respect of which such judgment has been
recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any
moneys collected by the Trustee pursuant to Section 5.2 with respect to
Securities of any series then Outstanding shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities of such series, and
stamping 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
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee pursuant to Section 6.6 except as a
result of its negligence or bad faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest,
if any, on the Securities of such series, in the order of the maturity
of the installments of such interest, if any, with interest (to the
extent that such interest has been collected by the Trustee) upon the
overdue installments of interest, if any, at the rate borne by the
Securities of such series, such payment to be made ratably to the
Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Securities of such
series for principal and interest, if any, with interest on the
overdue principal and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, if
any, at the rate borne by the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amounts so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest, if any, without preference or priority
of principal over interest or of interest over principal, or of any
installment of interest over any other installment of interest, or of
any Security over any other Security, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled
to receive the same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities
to which it relates, or which in any manner shall have been kept alive
after maturity by an extension (otherwise than pursuant to an
extension made pursuant to a plan proposed by the Issuer to the
Holders of all Securities of any series then Outstanding), purchase,
funding or otherwise by or on behalf or with the consent or approval
of the Issuer shall be entitled, in case of a default hereunder, to
any benefit of this Indenture, except after prior payment in full of
the principal of all Securities of any series then Outstanding and of
all claims for interest not so transferred, pledged, kept alive,
extended, purchased or funded.
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SECTION 5.4 Proceedings by Securityholders. No Holder of any
Securities of any series then Outstanding shall have any right by virtue of 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 the Securities or for the appointment of a receiver or trustee or similar
official, or for any other remedy hereunder or thereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless the Holders of not
less than 25 percent in aggregate principal amount of the Securities of such
series then Outstanding shall have made written request to the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and 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 the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding, it being understood and intended, and being
expressly covenanted by the Holder of every Security of such series with every
other taker and Holder and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture or of the Securities to
affect, disturb or prejudice the rights of any other Holder of such Securities
of such series, or to obtain or seek to obtain priority over or preference as
to any other such Holder, or to enforce any right under this Indenture or the
Securities, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of and
interest, if any, on such Security, on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any
such payment on or after such respective dates shall not be impaired or
affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. 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 by suit in equity or by action at law or by proceedings
in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and
remedies given by this Article Five to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any thereof or of any other powers and remedies available to the Trustee or
the Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to 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 5.7 Direction of Proceedings; Waiver of Defaults by
Majority of Securityholders. The Holders of at least a majority in aggregate
principal amount of the Securities of any series then Outstanding 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 Securities of such series; provided,
however, that (subject to the provisions of Section 6.1) the Trustee shall have
the
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right to decline to follow any such direction if the Trustee shall determine
upon advice of counsel that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors,
its executive committee, or a trust committee of directors or Responsible
Officers or both shall determine that the action or proceeding so directed
would involve the Trustee in personal liability. The Holders of 66 2/3% in
aggregate principal amount of the Securities of any series then Outstanding may
on behalf of the Holders of all of the Securities of such series waive any past
default or Event of Default hereunder and its consequences except a default in
the payment of interest, if any, on, or the principal of, the Securities of
such series. Upon any such waiver the Issuer, the Trustee and the Holders of
the Securities of such series shall be restored to their former positions and
rights hereunder, respectively, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 5.7, said default or Event of Default shall
for all purposes of the Securities and this Indenture be deemed to have been
cured and to be not continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90
days after the occurrence of a default, with respect to Securities of any
series then Outstanding, mail to all Holders of Securities of such series, as
the names and the addresses of such Holders appear upon the Securities
register, notice of all defaults known to the Trustee with respect to such
series, unless such defaults shall have been cured before the giving of such
notice (the term "defaults" for the purpose of this Section 5.8 being hereby
defined to be the events specified in clauses (a), (b), (c), (d), (e), (f), (g)
and (h) of Section 5.1, not including periods of grace, if any, provided for
therein and irrespective of the giving of the written notice specified in said
clause (d) or (g) but in the case of any default of the character specified in
said clause (d) or (g) no such notice to Securityholders shall be given until
at least 60 days after the giving of written notice thereof to the Issuer
pursuant to said clause (d) or (g), as the case may be); provided, however,
that, except in the case of default in the payment of the principal of or
interest, if any, on any of the Securities, or in the payment or satisfaction
of any sinking fund or other purchase obligation, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or Responsible
Officers or both of the Trustee in good faith determine that the withholding of
such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay Costs. All parties to this
Indenture agree, and each Holder of any Security by his 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 cost 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 5.9 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders, holding in the
aggregate more than ten percent in principal amount of the Securities of any
series then Outstanding, or to any suit instituted by any Securityholders for
the enforcement of the payment of the principal of or interest, if any, on any
Security against the Issuer on or after the due date expressed in such
Security.
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ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee,, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
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.
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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee
with respect to the Securities of any series shall be
determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable 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
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated
therein);
(b) 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; and
(c) 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 pursuant to Section 5.7 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.
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
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of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section
6.1:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate
or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon,
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 Issuer
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate or Issuer Order (unless other evidence in respect thereof
be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer,
(c) the Trustee may consult with counsel and any written
advice or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the trusts 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 (including, without limitation,
pursuant to Section 5.1), unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities (including reasonable attorneys' fees)
which might be incurred therein or thereby,
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default,
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, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders
of not less than a majority in aggregate principal amount of the
Securities of all series affected then Outstanding; provided 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 expenses or liabilities as a condition to proceeding, the
reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor Trustee, shall be
repaid by the Issuer 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 not regularly in its employ and the
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Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture, the
Securities or of any prospectus used to sell the Securities. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, 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 the Trustee or such agent and, subject
to Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive,
collect, hold and retain collections from the Issuer with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, 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 mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it 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 agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Issuer also covenants to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against or investigating any claim or
liability in the premises. The obligations of the Issuer under this Section 6.6
to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture or the
resignation or removal of the Trustee. Such additional indebtedness shall be a
senior claim 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, and the Securities are hereby
subordinated to such senior claim. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.1 or in
connection with Article Five hereof, the expenses (including the reasonable
fees and expenses of its counsel) and the compensation for the services in
connection therewith are intended to constitute expenses of administration
under any bankruptcy law.
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SECTION 6.7 Right of Trustee to Rely on Officer's Certificate,
etc. Subject to Sections 6.1 and 6.2, whenever in the administration of the
trusts 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 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 Officer's 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 by it
under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. (a)
If the Trustee has or shall acquire any conflicting interest (as defined in
subsection (c)), then within 90 days after ascertaining that it has such
conflicting interest, and if the default (as defined in subsection (c)) to
which such conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of such 90-day period, the Trustee shall
either eliminate such conflicting interest or, except as otherwise provided
below, resign, and the Issuer shall take prompt steps to have a successor
appointed in the manner provided in Section 6.10.
(b) If the Trustee shall fail to comply with the provisions of
subsection (a), the Trustee shall, within 10 days after the expiration of such
90-day period, transmit notice of such failure to the Securityholders in the
manner and to the extent provided in Section 4.4 and, subject to the provisions
of Section 5.9, unless the Trustees duty to resign is stayed as provided below,
any Securityholder who has been a bona fide holder of Securities for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee,
and the appointment of a successor, if the Trustee fails, after written request
thereof by such Securityholder to comply with the provisions of subsection (a).
Except in the case of a default in the payment of the principal of or
interest on any Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 6.8 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under this Indenture may be cured or
waived during a reasonable period and under the procedures described
in such application, and
(ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Securities.
The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise. Any
resignation of the Trustee shall become effective only upon the appointment of
a successor trustee in accordance with the provisions of Section 6.10 and such
successor's acceptance of such an appointment.
(c) For the purposes of this Section 6.8, the Trustee shall be
deemed to have a conflicting interest with respect to Securities of any series
if the Securities of such series are in default (as determined in accordance
with the provisions of Section 5.1, but exclusive of any period of grace or
requirement of notice) and
(i) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any other series or is a
trustee under another indenture under which any other securities, or
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certificates of interest or participation in any other securities, of
the Issuer are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Securities issued under this Indenture; provided that there shall be
excluded from the operation of this paragraph this Indenture with
respect to the Securities of any other series and there shall also be
so excluded any other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Issuer are outstanding if (x) this Indenture is
and, if applicable, this Indenture and any series issued pursuant to
this Indenture and such other indenture or indentures are wholly
unsecured and rank equally and such other indenture or indentures are
hereafter qualified under the Trust Indenture Act of 1939, unless the
Commission shall have found and declared by order pursuant to Section
305(b) or Section 307(c) of the Trust Indenture Act of 1939 that
differences exist between the provisions of this Indenture with
respect to Securities of such series and one or more other series, or
the provisions of this Indenture and the provisions of such other
indenture or indentures which are so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to Securities of such series
and such other series, or under this Indenture or such other indenture
or indentures, or (y) the Issuer shall have sustained the burden of
proving, on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect to
Securities of such series and such other series, or under this
Indenture and such other indenture or indentures is not so likely to
involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to
Securities of such series and such other series, or under this
Indenture and such other indentures;
(ii) the Trustee or any of its directors or executive
officers is an underwriter for the Issuer;
(iii) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Issuer;
(iv) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Issuer, or of an underwriter (other than the
Trustee itself) for the Issuer who is currently engaged in the
business of underwriting, except that (x) one individual may be a
director or an executive officer, or both, of the Trustee and a
director or an executive officer, or both, of the Issuer, but may not
be at the same time an executive officer of both the Trustee and the
Issuer, (y) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a
director of the Issuer, and (z) the Trustee may be designated by the
Issuer or, by any underwriter for the Issuer to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal agent,
escrow agent, or depositary, or in any other similar capacity, or,
subject to the provisions of subsection (c)(i) of this Section, to act
as trustee, whether under an indenture or otherwise;
(v) 10% or more of the voting securities of the Trustee
is beneficially owned either by the Issuer or by any director, partner
or executive officer thereof, or 20% or more of such voting securities
is beneficially owned, collectively, by any two or more of such
persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Issuer
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or by any director, partner, or executive officer thereof or is
beneficially owned, collectively, by any two or more such persons;
(vi) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, (x) 5% or
more of the voting securities or 10% or more of any other class of
security of the Issuer, not including the Securities issued under this
Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (y) 10% or more of any class of
security of an underwriter for the Issuer;
(vii) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Issuer;
(viii) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 10% or more
of any class of security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Issuer;
(ix) the Trustee owns on the date of default (as
determined in accordance with the provisions of Section 5.1, but
exclusive of any period of grace or requirement of notice) or on any
anniversary of such default while such default remains outstanding, in
the capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting securities, or of
any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraphs (vi), (vii) or (viii) of this subsection. As
to any such securities of which the Trustee acquired ownership through
becoming executor, administrator, or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such
estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after the dates of any such default and
annually in each succeeding year that the Securities remain in
default, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such dates.
If the Issuer fails to make payment in full of principal of or
interest on ,any of the Securities when and as the same becomes due
and payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such Securities
in any of the above-mentioned capacities as of the date of the
expiration of such 30-day period, and after such date, notwithstanding
the foregoing provisions of this paragraph, all such Securities so
held by the Trustee, with sole or joint control over such Securities
vested in it, shall, but only so long as such failure shall continue,
be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (vi), (vii) and (viii) of this subsection; or
(x) except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 6.13(b), the Trustee
shall be or shall become a creditor of the Issuer.
For purposes of subsection (c)(i), the term "series of securities" or
"series" means a series, class or group of securities issuable under an
indenture pursuant to whose terms holders of one such series may vote to direct
the Trustee, or otherwise take action pursuant to a vote of such holders,
separately from holders of
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another such series; provided, that "series of securities" or "series" shall
not include any series of securities issuable under an indenture if all such
series rank equally and are wholly unsecured.
The specification of percentages in subsections (c)(v) to (ix),
inclusive, of this Section 6.8 shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of subsections (c)(iii) or (vii) of this Section 6.8.
For the purposes of subsections (c)(vi), (vii), (viii) and (ix) of
this Section 6.8, only,
(i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities,
but shall not include any note or other evidence of indebtedness
issued to evidence an obligation to repay moneys lent to a person by
one or more banks, trust companies, or banking firms, or any
certificate of interest or participation in any such note or evidence
of indebtedness;
(ii) an obligation shall be deemed to be in default when a
default in payment of principal shall have continued for 30 days or
more and shall not have been cured; and
(iii) the Trustee shall not be deemed to be the owner or
holder of (x) any security which it holds as collateral security, as
trustee or otherwise, for an obligation which is not in default as
defined in clause (ii) above, or (y) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (z) any security which it holds as agent for collection,
or as custodian, escrow agent, or depositary, or in any similar
representative capacity.
Except as provided above, the word "security" or "securities" as used
in this Section 6.8 shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation
in any profit-sharing agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment contract, voting
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security, or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For purposes of this Section 6.8:
(i) the term "underwriter" when used with reference to
the Issuer shall mean every person who, within a one year period prior
to the time as of which the determination is made, was an underwriter
of any security of the Issuer outstanding at the time of the
determination;
(ii) the term "director" shall mean any director of a
corporation or any individual performing similar functions with
respect to any organization whether incorporated or unincorporated;
(iii) the term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a
trust, an unincorporated organization, or a government or political
subdivision thereof, as used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security;
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(iv) the term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are presently entitled to vote in the
direction or management of the affairs of a person;
(v) The term "Issuer" shall mean any obligor upon the
Securities; and
(vi) the term "executive officer" shall mean the
president, every vice president, every trust officer, the cashier, the
secretary, and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(e) The percentages of voting securities and other securities
specified in this Section 6.8 shall be calculated in accordance with the
following provisions:
(i) a specified percentage of the voting securities of
the Trustee, the Issuer or any other person referred to in this
Section 6.8 (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities of
such person as entitles the holder or holders thereof to cast such
specified percentage of the aggregate votes which the holders of all
the outstanding voting securities of such person are entitled to cast
in the direction or management of the affairs of such person;
(ii) a specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding;
(iii) the term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security;
(iv) the term "outstanding" means issued and not held by
or for the account of the issuer, the following securities shall not
be deemed outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking
fund relating to securities of the issuer of the same class;
(B) securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise;
(C) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(D) securities held in escrow if placed in escrow
by the issuer thereof;
provided, that any voting securities of an issuer shall be deemed outstanding
if any person other than the issuer is entitled to exercise the voting rights
thereof; and
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(v) a security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any state or the District of Columbia having a combined capital
and surplus of at least $50,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
federal, state or District of Columbia authority, or a corporation or other
Person permitted to act as trustee by the Commission. 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 6.9, 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. No obligor upon the
Securities or any Affiliate of such obligor shall serve as Trustee upon the
Securities. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.9, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of securities by
giving written notice of resignation to the Issuer and by mailing notice of
such resignation to the Holders of then outstanding Securities of each series
affected at their addresses as they shall appear on the registry books. Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series 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, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.9, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions
of Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign after
written request therefor by the Issuer or by any such Securityholder;
or
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(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for 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 Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.9, any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months may on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee with
respect to such series. 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 each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder, but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Issuer shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to
the Securities of any series as to which the predecessor trustee is not
retiring shall continue to be vested in the predecessor trustee, and 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-
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trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the acceptance
of appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Issuer fails to give such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. 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 6.8 and eligible
under the provisions of Section 6.9, 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 at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any successor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any
series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer.
(a) Subject to the provisions of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Issuer
within three months prior to a default, as defined in subsection (c) of this
Section 6.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities (as defined in this
Section 6.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
month period and valid as against the Issuer and its other creditors,
except any such reduction resulting from the receipt or disposition of
any property described in subsection (a)(2) of this Section 6.13, or
from the exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Issuer upon the date of such default; and
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(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three month period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if
any, of the Issuer and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the Issuer) who is
liable thereon, (ii) the proceeds of the bona fide sale of any such
claim by the Trustee to a third Person, and (iii) distributions made
in cash, securities or other property in respect of claims filed
against the Issuer in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Bankruptcy Code or applicable state
law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three month period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre- existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Securityholders and the holders of other indenture
securities in such manner that the Trustee, such Securityholders and the
holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Issuer in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Bankruptcy Code or applicable state law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Issuer of the funds and
property in such special account and before crediting to the respective claims
of the Trustee, such Securityholders and the holders of other indenture
securities dividends on claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Bankruptcy
Code or applicable state law, but after crediting thereon receipts on account
of the indebtedness represented by their respective claims from all sources
other than from such dividends and from the funds and property so held
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in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or in proceedings for reorganization pursuant to
the Bankruptcy Code or applicable state law, whether such distribution is made
in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustee, such
Securityholders and the holders of other indenture securities, in accordance
with the provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee, such Securityholders and the holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three month period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three month period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued as trustee, occurred after the beginning of such three
month period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section
6.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture or any security or securities having a maturity of
one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c)(2) of this Section 6.13;
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(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c)(3) of this Section 6.13.
(c) As used in this Section 6.13:
(1) the term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the
Securities when and as such principal or interest becomes due and
payable;
(2) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and
payable upon demand;
(3) the term "self-liquidating paper" shall mean any
draft, xxxx of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Issuer for the purpose of
financing the purchase, processing, manufacture, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon the goods, wares or
merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Issuer arising from
the making, drawing, negotiating or incurring of the draft, xxxx of
exchange, acceptance or obligation; and
(4) the term "Issuer" shall mean any obligor upon the
Securities.
SECTION 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent') which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any
series by the Trustee or to the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent for such series and a certificate of
authentication executed on behalf of the Trustee by such Authenticating Agent.
Such Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America or of any state
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which
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any Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be the
Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent. Any
Authenticating Agent may at any time, and if it shall cease to be eligible
shall, resign by giving written notice of resignation to the Trustee and to the
Issuer. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the
Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more series of Securities, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and the Issuer
shall provide notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided in Section 11.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. The
Issuer agrees to pay to the Authenticating Agent for such series from time to
time reasonable compensation. The Authenticating Agent for the Securities of
any series shall have no responsibility or liability for any action taken by it
as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article
Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following
manner:
(a) The fact and date of the execution by any Holder of
any instrument may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take
acknowledgments of deeds or administer oaths that the person executing
such instruments acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such
notary or other such officer. Where such execution is by or on behalf
of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of
the person executing the same.
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(b) The ownership of Securities shall be proved by the
Security register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest, if
any, on such Security and for all other purposes; and neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Issuer or any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Issuer or any other
obligor on the Securities with respect to which such determination is being
made 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 which the Trustee knows are 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 Issuer or any other obligor upon the Securities or any Affiliate of
the Issuer or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of
the Trustee, the Issuer shall furnish to the Trustee promptly an Officer's
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described
Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article Seven, revoke such action so
far as concerns such Security, provided that such revocation shall not become
effective until three business days after such filing. 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 Securities issued in exchange or substitution therefor or on registration
of transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Issuer, the Trustee and the
Holders of all the Securities affected by such action.
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SECTION 7.6 Record Date for Consents and Waivers. The Issuer may,
but shall not be obligated to, direct the Trustee to establish a record date
for the purpose of determining the Persons entitled to (i) waive any past
default with respect to the Securities of such series in accordance with
Section 5.7 of this Indenture, (ii) consent to any supplemental indenture in
accordance with Section 8.2 of this Indenture or (iii) waive compliance with
any term, condition or provision of any covenant hereunder. If a record date is
fixed, the Holders on such record date, or their duly designated proxies, and
any such Persons, shall be entitled to waive any such past default, consent to
any such supplemental indenture or waive compliance with any such term,
condition or provision, whether or not such Holder remains a Holder after such
record date; provided, however, that unless such waiver or consent is obtained
from the Holders, or duly designated proxies, of the requisite principal amount
of Outstanding Securities of such series prior to the date which is the 180th
day after such record date, any such waiver or consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), 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 of
1939 as in force at the date of the execution thereof) for one or more of the
following purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to
the Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and
the Trustee shall consider to be for the protection of the Holders of
all or any series of Securities (and if such covenants, restrictions,
conditions or provisions are to be for the protection of less than all
series of Securities, stating that the same are expressly being
included solely for the protection of such series), and to make the
occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an
Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth;
provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such an
Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of
a majority in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
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(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture, or to make any other provisions as
the Issuer may deem necessary or desirable, provided that no such
action shall adversely affect the interests of the Holders of the
Securities;
(e) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 8.1 may be executed without the consent of the Holders of any of the
Securities then Outstanding, notwithstanding any of the provisions of Section
8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Seven) of
the Holders of not less than a majority in aggregate principal amount of the
Securities then Outstanding of any series affected by such supplemental
indenture, the Issuer, when authorized by a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), 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 of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of such
series; provided, that no such supplemental indenture shall (a) extend the
final maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest, if any, thereon (or,
in the case of an Original Issue Discount Security, reduce the rate of accrual
of original issue discount thereon), or reduce or alter the method of
computation of any amount payable on redemption, repayment or purchase thereof
(or the time at which any such redemption, repayment or purchase may be made),
or make the principal thereof (including any amount in respect of original
issue discount), or interest, if any, thereon payable in any coin or currency
other than that provided in the Securities or in accordance with the terms of
the Securities, or reduce the portion of the principal amount of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the Securities
provide therefor, any right of repayment or purchase at the option of the
Securityholder, in each case without the consent of the Holder of each Security
so affected, or (b) reduce the aforesaid percentage of Securities of any
series, the consent of the Holders of
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which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected. No consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and
the Issuer to execute supplemental indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as
aforesaid and other documents, if any, required by Section 7.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Trustee shall give notice thereof to the Holders of then Outstanding Securities
of each series affected thereby, by mailing a notice thereof by first-class
mail to such Holders at their addresses as they shall appear on the Security
register. Any failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture
shall 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 Issuer and the Holders of
Securities of each 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 8.4 Documents to be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, shall be entitled to receive
an Officer's Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant to this Article Eight complies
with the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any
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matter provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE, OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms.
Subject to the provisions of Section 9.2, nothing contained in this Indenture
or in any of the Securities shall prevent any consolidation or merger of the
Issuer with or into any other corporation or corporations (whether or not
affiliated with the Issuer), or successive consolidations or mergers in which
the Issuer or its successor or successors shall be a party or parties, or shall
prevent any sale, lease, exchange or other disposition of all or substantially
all the property and assets of the Issuer to any other corporation (whether or
not affiliated with the Issuer) authorized to acquire and operate the same;
provided, however, and the Issuer hereby covenants and agrees, that any such
consolidation, merger, sale, lease, exchange or other disposition shall be upon
the conditions that (a) immediately after such consolidation, merger, sale,
lease, exchange or other disposition the corporation (whether the Issuer or
such other corporation) formed by or surviving any such consolidation or
merger, or to which such sale, lease, exchange or other disposition shall have
been made, shall not be in default in the performance or observance of any of
the terms, covenants and conditions of this Indenture to be kept or performed
by the Issuer; (b) the corporation (if other than the Issuer) formed by or
surviving any such consolidation or merger, or to which such sale, lease,
exchange or other disposition shall have been made, shall be a corporation
organized under the laws of the United States of America, any state thereof or
the District of Columbia; and (c) the due and punctual payment of the principal
of and interest, if any, on all the Securities, according to their tenor, and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee executed
and delivered to the Trustee, by the corporation (if other than the Issuer)
formed by such consolidation, or into which the Issuer shall have been merged,
or by the corporation which shall have acquired or leased such property and
assets.
SECTION 9.2 Securities to be Secured in Certain Events. If, upon
any such consolidation or merger, or upon any such sale, lease, exchange or
other disposition any properties or assets owned by the Issuer or a Subsidiary
immediately prior thereto would thereupon become subject to any mortgage,
security interest, pledge, lien or encumbrance, not permitted by Section 3.6
hereof, the Issuer, at or prior to consummation of such consolidation, merger,
sale, lease, exchange or other disposition, will by indenture supplemental
hereto secure the due and punctual payment of the principal of and interest, if
any, on the Securities then outstanding equally and ratably with (or prior to)
all Indebtedness secured thereby.
SECTION 9.3 Successor Corporation to be Substituted. In case of
any such consolidation, merger, sale, lease, exchange or other disposition and
upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and interest, if any, on
all of the Securities and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Issuer, such
successor corporation shall succeed to and be substituted for the Issuer, with
the same effect as if it had been named herein as the party of the first part,
and the Issuer (including any intervening successor to the Issuer which shall
have become the obligor hereunder) shall be relieved of any further obligation
under this
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Indenture and the Securities; provided, however, that in the case of a lease of
the property and assets of the Issuer (including any such intervening
successor), the Issuer (including any such intervening successor) shall
continue to be liable on its obligations under this Indenture and the
Securities to the extent, but only to the extent, of liability to pay the
principal of and interest, if any, on the Securities at the time, places and
rate prescribed in this Indenture and the Securities. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Issuer, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor corporation
instead of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, lease, exchange or
other disposition such changes in phraseology and form (but not in substance)
may be made in the Securities, thereafter to be issued, as may be appropriate.
SECTION 9.4 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 6.1 and 6.2, may receive an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease, exchange or other disposition and any such assumption comply with
the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at
any time (a) the Issuer shall have paid or caused to be paid the principal of
and interest, if any, on all the Securities Outstanding (other than Securities
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for cancellation
all Securities theretofore authenticated (other than Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9); and if, in any such case, the Issuer shall also pay or cause to
be paid all other sums payable hereunder by the Issuer, then this Indenture
shall cease to be of further effect, and the Trustee, on demand of the Issuer
accompanied by an Officer's Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the satisfaction and discharge
contemplated by this provision have been complied with, and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction and discharging this Indenture. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred,
and to compensate the Trustee for any services thereafter reasonably and
properly rendered, by the Trustee in connection with this Indenture or the
Securities.
(B) If at any time (a) the Issuer shall have paid or caused to be
paid the principal of and interest, if any, on all the Securities of any series
Outstanding (other than Securities of such series which have been
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destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (c) in the case of any series of Securities
with respect to which the exact amount described in clause (ii) below can be
determined at the time of making the deposit referred to in such clause (ii),
(i) all the Securities of such 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 (ii) the Issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
Securities of such series, cash in an amount (other than moneys repaid by the
Trustee or any Paying Agent to the Issuer in accordance with Section 10.4) or
direct obligations of the United States of America, backed by its full faith
and credit ("U.S. Government Obligations"), maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal of and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and payable, and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of this Indenture and the Securities of
such series; then the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such series on the date of the
deposit referred to in clause (ii) above and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except, in the case of clause (c) of this Section 10.1(B), as to (i) rights of
registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of
such series, (iii) rights of Holders of Securities of such series to receive
payments of principal thereof and interest, if any, thereon upon the original
stated due dates therefor (but not upon acceleration), and remaining rights of
the Holders of Securities of such series to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, (v) the rights of the Holders of Securities of such series
as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.3 with respect to Securities of such series) and the Trustee,
on demand of the Issuer accompanied by an Officer's Certificate and an Opinion
of Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same.
(C) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of this Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series on the 91st day after the date of the deposit
referred to in subparagraph (a) below, and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except as to (i) rights of registration of transfer and exchange of Securities
of such series, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities of such series, (iii) rights of Holders of Securities of such
series to receive payments of principal thereof and interest, if any, thereon
upon the original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders of Securities of such series to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the Holders of
Securities of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them and (vi) the
obligations of the Issuer under Section 3.3 with respect to Securities of such
series) and the Trustee, on demand of the Issuer accompanied
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by an Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with,
and at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such
series (i) cash in an amount, or (ii) U.S. Government Obligations,
maturing as to principal and interest, if any, at such times and in
such amounts as will insure the availability of cash, or (iii) 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 (A) the
principal of and interest, if any, on all Securities of such series on
each date that such principal or interest, if any, is due and payable,
and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of this
Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation
of, or constitute a default under, any agreement or instrument to
which the Issuer is a party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y), since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance
and discharge and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not
occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 10.4, all moneys and U.S. Government
Obligations deposited with the Trustee pursuant to Section 10.1 shall be held
in trust, and such moneys and all moneys from such U.S. Government Obligations
shall be applied by it to the payment, either directly or through any Paying
Agent (including the Issuer acting as its own paying agent), to the Holders of
the particular Securities of such series for the payment or redemption of which
such moneys and U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any, but such moneys need not be segregated from other funds except to the
extent required by law. The Trustee and any Paying Agent shall promptly pay to
the Issuer, upon the written request of the Issuer, any excess moneys or U.S.
Government Obligations held by them at any time.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any Paying Agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any Paying Agent for the payment of the principal of or interest, if any, on
any Security of any series and not applied but remaining unclaimed for two
years after
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the date upon which such principal or interest, if any, shall have become due
and payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series
or such Paying Agent, and the Holder of the Securities of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Issuer for
any payment which such Holder may be entitled to collect, and all liability of
the Trustee or any Paying Agent with respect to such moneys shall thereupon
cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in respect of
such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer, or any partner of the
Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto and their successors and the Holders of
the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee)
to Service Corporation International, 0000 Xxxxx Xxxxxxx, P. 0. Box 130548,
Xxxxxxx, Xxxxx 00000, Attention: Secretary. Any notice, direction, request or
demand by the Issuer or any Holder of Securities to or upon the Trustee shall
be deemed to have been sufficiently given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until
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another address of the Trustee is filed by the Trustee with the Issuer) to 000
Xxxxxxx Xxxxxx-00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration.
Where this Indenture provides for notice to Holders of Securities,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in the Security register.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be reasonably satisfactory to
the Trustee shall be deemed to be sufficient notice.
SECTION 11.5 Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, or as required pursuant to the Trust Indenture Act of 1939, the
Issuer shall furnish to the Trustee an Officer's 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.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) 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, (c) 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 opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement
as to whether or not, in the opinion of such person, such condition or covenant
has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
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Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If
the date of maturity of principal of or interest, if any, on the Securities of
any series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any, or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, purchase or repayment, and, in the case of
payment, no interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310
to 317, inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY
SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF TEXAS, AND FOR
ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
SECTION 11.9 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 11.10 Effect of Headings. The Article and Section headings
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified, as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first-class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear upon the
registry books. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to
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give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest, if any, (or, in the
case of Original Issue Discount Securities, original issue discount) accrued to
the date fixed for redemption will be paid as specified in such notice and that
on and after said date interest, if any, thereon or on the portions thereof to
be redeemed (or, in the case of Original Issue Discount Securities, original
issue discount) will cease to accrue. In case any Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, 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.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the
Trustee or with one or more Paying Agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
3.5) an amount of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest, if any, to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 45 days prior to
the date fixed for redemption (unless a shorter notice shall be satisfactory to
the Trustee) an Officer's Certificate stating the aggregate principal amount of
Securities to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of any notice of
redemption to Holders pursuant to this Section, an Officer's Certificate
stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify the Issuer in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the
redemption of Securities of any series shall relate, in the case of any
Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest, if
any, accrued to said date) interest (or, in the case of Original Issue Discount
Securities, original issue discount)
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on the Securities or portions of Securities so called for redemption shall
cease to accrue, and, except as provided in Sections 6.5 and 10.4, such
Securities shall cease from and after the date fixed for redemption to be
entitled to any other benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable redemption
price, together with interest, if any, accrued thereon to the date fixed for
redemption; provided that payment of interest, if any, becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or
duly provided for, bear interest from the date fixed for redemption at the rate
of interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Issuer or (b) a Person specifically identified in such written
statement as an Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the 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 the
Securities of any series is herein referred to as an "optional sinking fund
payment." The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section 12.5,
or (c) receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officer's
Certificate (a) specifying the portion of the mandatory sinking fund
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payment to be satisfied by payment of cash and the portion to be satisfied by
credit of Securities of such series and the basis for such credit, (b) stating
that none of the Securities of such series to be so credited has theretofore
been so credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which have not
been waived or cured or otherwise ceased to exist) and are continuing, and (d)
stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date.
Any Securities of such series to be credited and required to be delivered to
the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the Trustee with such
Officer's Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officer's Certificate shall be irrevocable and upon its receipt
by the Trustee the Issuer shall become unconditionally obligated to make all
the cash payments or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Issuer, on or before
any such 60th day, to deliver such Officer's Certificate and Securities
(subject to the parenthetical clause in the second preceding sentence)
specified in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Issuer (i)
that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect thereof, and
(ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 or a lesser sum if the Issuer shall so request with respect to
the Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash,
as nearly as may be, and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the Issuer
(or the Issuer, if it shall so request the Trustee in writing) shall cause
notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any
and all sinking fund moneys held on the stated maturity date of the Securities
of any particular series (or earlier, if such maturity is accelerated), which
are not held for the payment or redemption of particular Securities of such
series shall be applied, together with other moneys, if necessary, sufficient
for the purpose, to the payment of the principal of, and interest, if any, on,
the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed
on such sinking fund payment date.
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The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default with respect to such series except that, where the giving of
notice of redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities, provided that it
shall have received from the Issuer a sum sufficient for such redemption.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the continuance of such
default or Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 5.7 or the default cured
on or before the 60th day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section 12.5 to the redemption of such
Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, effective as of _____ 1, ____.
SERVICE CORPORATION INTERNATIONAL
By:
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Name:
---------------------------------
Title:
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THE BANK OF NEW YORK, as Trustee
By:
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Name:
---------------------------------
Title:
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