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EXHIBIT 4(c)
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[CONFORMED COPY]
XXXXXXXX BRANDS INTERNATIONAL, INC.
and
THE FIFTH THIRD BANK,
Trustee
_____________
INDENTURE
Dated as of February 15, 1994
_____________
Senior Debt Securities
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2
XXXXXXXX BRANDS INTERNATIONAL, INC.
Reconciliation and tie showing the location in the Indenture
dated as of ___________, 1994 of the provisions inserted pursuant to Sections
310 to 318(a), inclusive, of the Trust Indenture Act of 1939.
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610(d)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . 502 and 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
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NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certificate of a Firm of Independent Public Accountants . . . . . . . . . . . . . . . . . . . . . 3
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Security Register and Debt Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Discounted Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . 9
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . 10
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Non-Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 114. Immunity of Incorporators, Stockholders,
Officers and Directors . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
DEBT SECURITY FORM . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Form of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . 16
SECTION 301. Title; Payment and Terms . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Debt Securities and Exchange of
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 305. Registration of Transfer and Exchange . . . . . . . . . . . . . . . . 20
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . 24
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ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . 24
SECTION 401. Satisfaction and Discharge of Debt
Securities of any Series . . . . . . . . . . . . . . . . . . . . 24
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . 26
SECTION 403. Satisfaction and Discharge of Indenture . . . . . . . . . . . . 27
SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 32
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . 33
SECTION 505. Trustee May Enforce Claims Without
Possession of Debt Securities . . . . . . . . . . . . . . . . . 34
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . 35
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 508. Unconditional Right of Holders to Receive
Principal (and Premium, if any) and
Interest, if any . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . 36
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . 36
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . 37
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . 37
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . 38
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . 38
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . 38
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . 39
SECTION 604. Not Responsible for Recitals or Issuance
of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 605. May Hold Debt Securities . . . . . . . . . . . . . . . . . . . . 41
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . 41
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . 42
SECTION 609. Corporate Trustee Required, Different
Trustees for Different Series;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . 44
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SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . 46
SECTION 613. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 614. Authenticating Agents . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SEVEN
HOLDERS' REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . 48
SECTION 701. Preservation of Information; Company to
Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 702. Communications to Holders . . . . . . . . . . . . . . . . . . . 48
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER . . . . . . . . . . . . 49
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 802. Successor Corporation Substituted . . . . . . . . . . . . . . . 50
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . 50
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . 50
SECTION 902. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . 53
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . 53
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . 54
SECTION 906. Reference in Debt Securities to
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 54
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . 54
SECTION 1001. Payment of Principal (and Premium, if
any) and Interest, if any . . . . . . . . . . . . . . . . . . . 54
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . 54
SECTION 1003. Money for Debt Securities Payments to Be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1004. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . 57
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . 57
SECTION 1006. Statements as to Compliance . . . . . . . . . . . . . . . . . . 57
SECTION 1007. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . 58
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ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . 59
SECTION 1101. Applicability of This Article . . . . . . . . . . . . . . . . . 59
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . 59
SECTION 1103. Selection by Trustee of Debt Securities
to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . 61
SECTION 1106. Debt Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1107. Debt Securities Redeemed in Part . . . . . . . . . . . . . . . 61
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . 62
SECTION 1201. Applicability of This Article . . . . . . . . . . . . . . . . . 62
SECTION 1202. Satisfaction of Sinking Fund Payments
With Debt Securities . . . . . . . . . . . . . . . . . . . . . 62
SECTION 1203. Redemption of Debt Securities for
Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . 63
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This is an INDENTURE dated as of February 15, 1994, between
Xxxxxxxx Brands International, Inc., a corporation duly incorporated and
existing under the laws of New Jersey and having its principal office at 000
Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx (hereinafter called the "Company"), and The
Fifth Third Bank, an Ohio banking corporation, as Trustee (hereinafter called
the "Trustee").
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes securities (hereinafter called the "Debt Securities")
evidencing its unsecured indebtedness and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Debt Securities, unlimited as to principal amount, to have such titles, to bear
such rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done, and the Company
proposes to do all things necessary to make the Debt Securities, when executed
by the Company and authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company as hereinafter
provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Debt Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Debt
Securities or any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and all Debt Securities
issued hereunder, except as otherwise expressly provided or unless the context
otherwise requires:
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(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such generally accepted
accounting principles as in effect and as implemented by the Company on
the date of this Indenture; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three and Article
Six, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"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.
"Authenticating Agent" means any Person authorized to
authenticate and deliver Debt Securities on behalf of the Trustee for
the Debt Securities of any series pursuant to Section 614.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of that board or any director
or directors and/or officer or officers of the Company to whom that
board or committee shall have duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such
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certification, or (2) a certificate signed by the director or directors
or officer or officers to whom the board of directors of the Company
shall have duly delegated its authority, and delivered to the Trustee
for the Debt Securities of any series.
"Business Day", when used with respect to any particular Place
of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law to close, and shall
otherwise mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions, at the place where
any specified act pursuant to this Indenture is to occur, are
authorized or obligated by law to close.
"Capital Stock" means any and all shares of the capital stock,
par value $.33 per share, of the Company and of any class or series of
preferred or preference stock of the Company, whether now outstanding
or issued after the date of this Indenture.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying
the right to use) real or personal property that is required to be
classified and accounted for as a capital lease obligation under
generally accepted accounting principles consistently applied, and, for
the purposes of this Indenture, the amount of such obligation at any
date shall be the capitalized amount thereof at such date, determined
in accordance with such principles.
"Certificate of a Firm of Independent Public Accountants"
means a certificate signed by any firm of independent public
accountants of recognized standing selected by the Company. The term
"independent" when used with respect to any specified firm of public
accountants means such a firm which (1) is in fact independent, (2)
does not have any direct financial interest or any material indirect
financial interest in the Company or in any Affiliate of the Company,
and (3) is not connected with the Company or any Affiliate of the
Company as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions, but such firm
may be the regular auditors employed by the Company. Whenever it is
herein provided that any Certificate of a Firm of Independent Public
Accountants shall be furnished to the Trustee for Debt Securities of
any series, such Certificate shall state that the signer has read this
definition and that the signer is independent within the meaning
hereof.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
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"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Stock" means the capital stock, par value $.33
per share, of the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by (1) the
Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, or (2) by any two Persons designated in a
Company Order previously delivered to the Trustee for the Debt
Securities of any series by any two of the foregoing officers and
delivered to the Trustee for the Debt Securities of such series.
"Corporate Trust Office" means the office of the Trustee for
Debt Securities of any series at which at any particular time its
corporate trust business shall be principally administered, which
office of The Fifth Third Bank, at the date of the execution of this
Indenture, is located at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx
00000.
"corporation" includes corporations, associations, joint-
stock companies and business trusts.
"Debt Securities" means securities evidencing unsecured
indebtedness of the Company authenticated and delivered under this
Indenture.
"Debt Security Register" and "Debt Security Registrar" have
the respective meanings specified in Section 305.
"Defaulted Interest" has the meaning specified in Section
307.
"Discounted Debt Security" means any Debt Security which
provides for an amount (excluding any amounts attributable to accrued
but unpaid interest thereon) less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
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"Dollars" and the sign "$" mean the currency of the United
States of America as at the time of payment is legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in
Section 501.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Holder", when used with respect to any Debt Security, means
the Person in whose name a Debt Security is registered in the Debt
Security Register.
"Indebtedness" means (a) any liability of any Person (1) for
borrowed money, or under any reimbursement obligation relating to a
letter of credit (other than letters of credit obtained in the ordinary
course of business), or (2) evidenced by a bond, note, debenture or
similar instrument (including a purchase money obligation) given in
connection with the acquisition of any businesses, properties or assets
of any kind or with services incurred in connection with capital
expenditures (other than accounts payable or other indebtedness to
trade creditors arising in the ordinary course of business), or (3) for
the payment of money relating to a Capitalized Lease Obligation; (b)
any liability of others described in the preceding clause (a) that the
Person has guaranteed or that is otherwise its legal liability; and (c)
any amendment, supplement, modification, deferral, renewal, extension
or refunding of any liability of the types referred to in clauses (a)
and (b) above.
"Indenture" means this instrument as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and
shall include the terms of a particular series of Debt Securities
established as contemplated by Section 301.
"interest", when used with respect to a Discounted Debt
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Debt
Security, means the Stated Maturity of an installment of interest on
such Debt Security.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement, charge or other
security interest or encumbrance of any kind.
"Maturity", when used with respect to any Debt Security, means
the date on which the principal of that Debt Security becomes due and
payable as therein or herein provided, whether
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at the Stated Maturity or by declaration of acceleration, call
for redemption, request for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a
Vice President (any reference to a Vice President of the Company herein
shall be deemed to include any Vice President of the Company whether or
not designated by a number or a word or words added before or after the
title "Vice President"), and by the Treasurer, an Assistant Treasurer,
the Controller, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee for the Debt
Securities of any series.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company or may be other counsel
satisfactory to the Trustee for the Debt Securities of any series.
"Outstanding", when used with respect to Debt Securities,
means, as of the date of determination, all Debt Securities theretofore
authenticated and delivered under this Indenture, except:
(1) Debt Securities theretofore canceled by the
Trustee for such Debt Securities or delivered to such
Trustee for cancellation;
(2) Debt Securities or portions thereof for whose
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee for such Debt
Securities or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders
of such Debt Securities (including Debt Securities with
respect to which the Company has effected satisfaction and
discharge as provided in Article Four or covenant defeasance
as provided in Section 1015, except to the extent provided in
such Article or Section); provided, however, that, if such
Debt Securities or portions thereof are to be redeemed, notice
of such redemption has been duly given pursuant to this
Indenture, or provision therefor satisfactory to such Trustee
has been made; and
(3) Debt Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Debt Securities in respect
of which there shall have been presented proof satisfactory to
the Trustee for such Debt Securities that any such Debt
Securities are held by bona
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fide purchasers in whose hands the Debt Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder, (a) Debt Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee for such
Debt Securities shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Debt
Securities which such Trustee knows to be so owned shall be so
disregarded, provided, that Debt Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of such Trustee the pledgee's right so
to act with respect to such Debt Securities and that the pledgee is not
the Company or any Affiliate of the Company and (b) the principal
amount of a Discounted Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration pursuant to Section
502.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest, if any, on any
Debt Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Debt
Securities of any particular series, means the place or places where
the principal of (and premium, if any) and interest, if any, on the
Debt Securities of that series are payable, as contemplated by Section
301.
"Predecessor Debt Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the
same debt as that evidenced by that particular Debt Security, and, for
the purposes of this definition, any Debt Security authenticated and
delivered under Section 306 in lieu of a mutilated, destroyed, lost or
stolen Debt Security shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Debt Security.
"Redemption Date", when used with respect to any Debt Security
to be redeemed in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
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"Redemption Price", when used with respect to any Debt
Security to be redeemed, means an amount equal to the principal amount
thereof (and premium, if any, thereon) together with accrued interest,
if any, to the Redemption Date.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Debt Securities of any series, means the date, if
any, specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee
for any series of Debt Securities, means the chairman or vice chairman
of the board of directors, the chairman or vice chairman of the
executive committee of the board of directors, the president, any vice
president (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other
officer of such Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
A "series" of Debt Securities means all Debt Securities
denoted as part of the same series authorized by or pursuant to a
particular Board Resolution.
"Special Record Date" for the payment of any Defaulted
Interest on the Debt Securities of any series means a date fixed by the
Trustee for such series pursuant to Section 307.
"Stated Maturity", when used with respect to any security or
any installment of principal thereof or interest thereon, means the
date specified in such security representing such installment of
interest as the fixed date on which the principal of such security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a
majority of all outstanding stock having ordinary voting power in the
election of directors of such corporation is at the time, directly or
indirectly, owned by the Company or by one or more Subsidiaries or by
the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument and, subject to the provisions of Article
Six hereof, shall also include its successors and assigns as Trustee
hereunder. If there shall
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be at one time more than one Trustee hereunder, "Trustee" shall mean
each such Trustee and shall apply to each such Trustee only with
respect to those series of Debt Securities with respect to which it is
serving as Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended and in force at the date as of which this Indenture was
executed, except as provided in Section 905 hereof and except that any
rules and regulations subsequently prescribed by the Commission
pursuant to Section 314(a) of that Act shall apply.
"U.S. Government Obligations" means securities which are (i)
direct obligations of the government of the United States or (ii)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the government of the United States, the
payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such
government and are not callable or redeemable at the option of the
issuer thereof.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, possessions
and other areas subject to its jurisdiction (including the Commonwealth
of Puerto Rico).
"Yield to Maturity", when used with respect to any Discounted
Debt Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
for any series of Debt Securities to take any action under any provision of this
Indenture, the Company shall furnish to such Trustee (i) an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, (ii) an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and (iii) if appropriate,
a Certificate of a Firm of Independent Public Accountants; provided, that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such condition
or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows that the certificate
or opinion or representations with respect to matters upon which his certificate
or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall
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become effective when such instrument or instruments are delivered to the
Trustee for the appropriate series of Debt Securities and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee for the appropriate series of Debt Securities and the Company and
any agent of such Trustee or the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a
partnership, or an official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental body or by a
fiduciary, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee for the appropriate
series of Debt Securities deems sufficient.
(d) The principal amount and serial numbers of Debt Securities
held by any Person, and the date of holding the same, shall be proved by the
Debt Security Register.
(e) In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture, the
principal amount of a Discounted Debt Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such purpose
shall be equal to the amount of the principal thereof that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 at the time the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee for such Debt Securities.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Debt Security shall bind
every future Holder of the same Debt Security and the Holder of every Debt
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the
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Trustee for such Debt Securities, the Debt Security Registrar, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Debt Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee for a series of Debt Securities by any
Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or
with such Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company by such Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as provided in
paragraphs (3), (4) and (5) of Section 501) if in writing and mailed,
first class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to such Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) to Holders if in writing and mailed, first class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Debt Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Debt Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed in the manner prescribed
by this Indenture shall be deemed to have been given whether or not received by
any particular Holder. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice to Holders by mail, then such notification as shall be made with the
approval of the Trustee for such Debt Securities shall constitute a sufficient
notification for every purpose hereunder.
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 for
such Debt
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Securities, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
the duties imposed by any of Sections 310 through 317, inclusive, of the Trust
Indenture Act through the operation of Section 318(c) thereof, such imposed
duties shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In any case any provision in this Indenture or in the Debt
Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities, expressed
or implied, shall give to any Person, other than the parties hereto, any Paying
Agent, any Debt Security Registrar and their successors hereunder and the
Holders of Debt Securities, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Non-Business Day.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of a Debt Security of any particular series shall not be a
Business Day at any Place of Payment with respect to Debt Securities of that
series, then (notwithstanding any other provision of this Indenture or of the
Debt Securities) payment of principal of (and premium, if any) and interest, if
any, with respect to such Debt Security need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and
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effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
SECTION 114. Immunity of Incorporators, Stockholders,
Officers and Directors.
No recourse shall be had for the payment of the principal of
(and premium, if any), or the interest, if any, on any Debt Security of any
series, or for any claim based thereon, or upon any obligation, covenant or
agreement of this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment of penalty or otherwise; it being expressly
agreed and understood that this Indenture and all the Debt Securities of each
series are solely corporate obligations, and that no personal liability whatever
shall attach to, or is incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of any successor
corporation, either directly or indirectly through the Company or any successor
corporation, because of the incurring of the indebtedness hereby authorized or
under or by reason of any of the obligations, covenants or agreements contained
in this Indenture or in any of the Debt Securities of any series, or to be
implied herefrom or therefrom; and that all such personal liability is hereby
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the Debt
Securities of each series.
ARTICLE TWO
DEBT SECURITY FORM
SECTION 201. Form of Debt Securities.
The Debt Securities of each series shall be in such fully
registered form as shall be established by or pursuant to a Board Resolution,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture or any indenture supplemental
hereto and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
any law, with any rule or regulation made pursuant thereto, with any rules of
any securities exchange or to conform to usage, as may, consistent herewith, be
determined by the officers executing such Debt Securities, as evidenced by their
execution of such Debt Securities.
Prior to the delivery of a Debt Security of any series in any
such form to the Trustee for the Debt Securities of such series
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for authentication, the Company shall deliver to such Trustee the
following:
(1) The Board Resolution by or pursuant to which such
form of Debt Security has been approved;
(2) An Officers' Certificate dated the date such Certificate
is delivered to such Trustee stating that all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of Debt Securities in such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in such
form, when (a) completed by appropriate insertions and executed and
delivered by the Company to such Trustee for authentication in
accordance with this Indenture, (b) authenticated and delivered by such
Trustee in accordance with this Indenture within the authorization as
to aggregate principal amount established from time to time by the
Board of Directors and (c) sold in the manner specified in such Opinion
of Counsel, will be the legal, valid and binding obligations of the
Company, subject to applicable bankruptcy, reorganization, insolvency
and other similar laws generally affecting creditors' rights, to
general equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders
of such Debt Securities.
The definitive Debt Securities shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debt Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Certificate of Authentication on all Debt Securities shall
be in substantially the following form:
"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned
Indenture.
_________________________,
as Trustee
By______________________________
Authorized Officer"
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ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Title; Payment and Terms.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
The Debt Securities may be issued up to the aggregate principal amount of Debt
Securities from time to time authorized by or pursuant to a Board Resolution.
The Debt Securities may be issued in one or more series, each
of which shall be issued pursuant to a Board Resolution. With respect to any
particular series of Debt Securities, the Board Resolution relating thereto
shall specify:
(1) the title of the Debt Securities of that series (which
shall distinguish the Debt Securities of that series from all other
series of Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of that series pursuant to Section 304,
305, 306, 906 or 1107 or otherwise pursuant to any covenant permitting
the purchase of a portion of the Debt Securities of that series);
(3) the date or dates (or manner of determining the same) on
which the principal of the Debt Securities of that series is payable
(which, if so provided in such Board Resolution, may be determined by
the Company from time to time and set forth in the Debt Securities of
the series issued from time to time);
(4) the rate or rates (or the manner of calculation thereof)
at which the Debt Securities of that series shall bear interest (if
any), the date or dates from which such interest shall accrue (which,
in either case or both, if so provided in such Board Resolution, may be
determined by the Company from time to time and set forth in the Debt
Securities of the series issued from time to time), the Interest
Payment Dates on which such interest shall be payable (or manner of
determining the same) and the Regular Record Date for the interest
payable on any Debt Securities on any Interest Payment Date;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest, if
any, on Debt Securities of that series shall be payable, any Debt
Securities of that series may be surrendered for registration of
transfer, any Debt Securities of that
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series may be surrendered for exchange, and notices and demands to or
upon the Company in respect of the Debt Securities of that series and
this Indenture may be served;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Debt Securities of that
series may be redeemed, in whole or in part, at the option of the
Company;
(7) the obligation, if any, of the Company to redeem or
purchase Debt Securities of that series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Debt Securities of that series shall
be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) the denominations in which any Debt Securities of that
series shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(9) if other than the principal amount thereof, the portion of
the principal amount of Debt Securities of that series which shall be
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(10) any addition to, or modification or deletion of, any
Events of Default or covenants of the Company with respect to the Debt
Securities of that series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(11) if a Person other than The Fifth Third Bank is to act as
Trustee for the Debt Securities of that series, the name and location
of the Corporate Trust Office of such Trustee;
(12) if other than as set forth in Section 401, provisions for
the satisfaction and discharge of this Indenture with respect to the
Debt Securities of that series;
(13) any provision relating to the defeasance of the
obligations of the Company in connection with the Debt
Securities of that series;
(14) any provisions regarding exchangeability or
conversion of the Debt Securities of that series; and
(15) any other terms of that series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any particular series shall be
substantially identical except as to denomination, rate of interest, Stated
Maturity and the date from which interest, if any,
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shall accrue, and except as may otherwise be provided in or pursuant to such
Board Resolution relating thereto. The terms of such Debt Securities, as set
forth above, may be determined by the Company from time to time if so provided
in or established pursuant to the authority granted in a Board Resolution. All
Debt Securities of any one series need not be issued at the same time, and
unless otherwise provided, a series may be reopened for issuance of additional
Debt Securities of such series.
SECTION 302. Denominations.
Unless otherwise provided with respect to any series of Debt
Securities as contemplated by Section 301, all Debt Securities of a series shall
be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Debt Securities shall be executed on behalf of the Company
by its Chairman of the Board, a Vice Chairman of the Board, or its President or
one of its Vice Presidents. The Debt Securities shall be so executed under the
corporate seal of the Company reproduced thereon and attested to by its
Secretary or any one of its Assistant Secretaries. The signature of any of these
officers on the Debt Securities may be manual or facsimile.
Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Debt Securities of any
series executed by the Company to the Trustee for the Debt Securities of such
series for authentication, together with a Company Order for the authentication
and delivery of such Debt Securities, and such Trustee, in accordance with the
Company Order, shall authenticate and deliver such Debt Securities. If all the
Debt Securities of any one series are not to be issued at one time and if a
Board Resolution relating to such Debt Securities shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Debt Securities, including, without limitation, procedures with respect to
interest rate, Stated Maturity, date of issuance and date from which interest,
if any, shall accrue.
Notwithstanding any contrary provision herein, if all Debt
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver the Board Resolution, Officers' Certificate and Opinion
of Counsel otherwise required pursuant to Sections 102 and 201 at or prior to
the time of authentication of each Debt Security of such series if such
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documents are delivered at or prior to the authentication upon original issuance
of the first Debt Security of such series to be issued.
Each Debt Security shall be dated the date of its
authentication.
No Debt Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debt Security a certificate of authentication substantially in the form provided
for herein manually executed by the Trustee for such Debt Security or on its
behalf pursuant to Section 614, and such certificate upon any Debt Security
shall be conclusive evidence, and the only evidence, that such Debt Security has
been duly authenticated and delivered hereunder.
SECTION 304. Temporary Debt Securities and Exchange of
Debt Securities.
Pending the preparation of definitive Debt Securities of any
particular series, the Company may execute, and upon Company Order the Trustee
for the Debt Securities of such series shall authenticate and deliver, in the
manner specified in Section 303, temporary Debt Securities which are printed,
lithographed, typewritten, photocopied or otherwise produced, in any
denomination, with like terms and conditions as the definitive Debt Securities
of like series in lieu of which they are issued, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Debt Securities may determine, as evidenced by their execution of
such Debt Securities.
If temporary Debt Securities of any particular series are
issued, the Company will cause definitive Debt Securities of that series to be
prepared without unreasonable delay. After the preparation of such definitive
Debt Securities, the temporary Debt Securities of such series shall be
exchangeable for such definitive Debt Securities and of a like Stated Maturity
and with like terms and provisions upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Debt Securities of any particular
series, the Company shall execute and (in accordance with a Company Order
delivered at or prior to the authentication of the first definitive Debt
Security of such series) the Trustee for the Debt Securities of such series
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of authorized denominations of the same series and of
a like Stated Maturity and with like terms and provisions. Until exchanged as
hereinabove provided, the temporary Debt Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of the same series and with like terms and conditions
authenticated and delivered hereunder.
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SECTION 305. Registration of Transfer and Exchange.
The Company shall keep or cause to be kept for the Debt
Securities of each series a register (the register maintained in such office
being herein sometimes referred to as the "Debt Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of transfer and exchange of Debt Securities. The
Securities Transfer Company is hereby initially appointed "Debt Security
Registrar" for such purposes.
Upon surrender for registration of transfer of any Debt
Security of any particular series at the office or agency of the Company in a
Place of Payment for that series, the Company shall execute, and the Trustee for
the Debt Securities of each series shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Debt Securities of
any authorized denominations, and of a like Stated Maturity and of a like series
and aggregate principal amount and with like terms and conditions.
Except as set forth below, at the option of the Holder, Debt
Securities of any particular series may be exchanged for other Debt Securities
of any authorized denominations, and of a like Stated Maturity and of a like
series and aggregate principal amount and with like terms and conditions, upon
surrender of the Debt Securities to be exchanged at such office or agency.
Whenever any Debt Securities are so surrendered for exchange, the Company shall
execute, and the Trustee for such Debt Securities shall authenticate and
deliver, the Debt Securities which the Holder making the exchange is entitled to
receive.
All Debt Securities issued upon any registration of transfer
or exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Debt Security presented or surrendered for registration
of transfer or exchange shall (if so required by the Company or the Trustee for
such Debt Security) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Debt Security Registrar
for such series duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Debt
Securities, other than exchanges pursuant to Section 304, 906, 1013 or 1107 not
involving any transfer.
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The Company shall not be required (i) to issue, register the
transfer of or exchange Debt Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Debt Securities of that series selected for redemption under
Section 1104 and ending at the close of business on the day of the mailing of
the relevant notice of redemption , or (ii) to register the transfer of or
exchange any Debt Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Debt Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Debt Securities.
If (i) any mutilated Debt Security is surrendered to the
Trustee for such Debt Security, or the Company and the Trustee for a Debt
Security receive evidence to their satisfaction of the destruction, loss or
theft of any Debt Security, and (ii) there is delivered to the Company and such
Trustee such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or such Trustee that such Debt Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request such Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Debt Security or in exchange for such mutilated Debt Security, a new Debt
Security of the same series and in a like principal amount and of a like Stated
Maturity and with like terms and conditions and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
(without surrender thereof except in the case of a mutilated Debt Security) if
the applicant for such payment shall furnish to the Company and the Trustee for
such Debt Security such security or indemnity as may be required by them to save
each of them harmless, and in case of destruction, loss or theft, evidence
satisfactory to the Company and such Trustee and any agent of either of them of
the destruction, loss or theft of such Debt Security and the ownership thereof.
Upon the issuance of any new Debt Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including all fees and expenses of the Trustee for such Debt Security)
connected therewith.
Every new Debt Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Debt Security or in exchange
for any mutilated Debt Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debt Security shall be at any
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time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities of
the same series, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debt
Securities.
SECTION 307. Payment of Interest; Interest Rights
Preserved.
Interest on any Debt Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall, if so
provided in such Debt Security, be paid to the Person in whose name that Debt
Security (or one or more Predecessor Debt Securities) is registered at the close
of business on the Regular Record Date for such interest payment.
Unless otherwise provided with respect to the Debt Securities
of any series, payment of interest may be made at the option of the Company by
check mailed or delivered to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or by transfer to an account
maintained by the payee with a bank located inside the United States.
Any interest on any Debt Security of any particular series
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered Holder on the relevant Regular Record Date by
virtue of having been such Holder; and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debt Securities of that
series (or their respective Predecessor Debt Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee for the Debt Securities of such
series in writing of the amount of Defaulted Interest proposed to be
paid on each Debt Security of that series and the date of the proposed
payment, and at the same time the Company shall deposit with such
Trustee an amount of money (except as otherwise specified pursuant to
Section 301 for the Debt Securities of such series) equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to such Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause
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provided. Thereupon such Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall not be more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by such Trustee of
the notice of the proposed payment. Such Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Debt Securities
of that series at such Holder's address as it appears in the Debt
Security Register not less than 10 days prior to such Special Record
Date. Such Trustee may, in its discretion, in the name and at the
expense of the Company, cause a similar notice to be published at least
once in a newspaper published in the English language customarily on
each Business Day and of general circulation in New York, New York, but
such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Persons in whose names the Debt Securities of that series (or
their respective Predecessor Debt Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on
Debt Securities of any particular series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Debt Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice is given by the Company to
the Trustee for the Debt Securities of such series of the proposed
manner of payment pursuant to this clause, such manner of payment shall
be deemed practicable by such Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Debt Security delivered under this Indenture upon registration
of transfer of or in exchange for or in lieu of any other Debt Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Debt Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Debt Security for registration
of transfer, the Company, the Trustee for such Debt Security and any agent of
the Company or such Trustee may treat the Person in whose name any such Debt
Security is registered as the owner of such Debt Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
307) interest, if any, on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security be overdue, and
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neither the Company, such Trustee nor any agent of the Company or such Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Debt Securities surrendered for payment, redemption,
registration of transfer or exchange, or delivered in satisfaction of any
sinking fund payment, shall, if surrendered to any Person other than the Trustee
for such Debt Securities, be delivered to such Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for Debt
Securities of a series for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by such Trustee. Notwithstanding any other provision of this Indenture
to the contrary, in the case of a series, all the Debt Securities of which are
not to be originally issued at one time, a Debt Security of such series shall
not be deemed to have been Outstanding at any time hereunder if and to the
extent that, subsequent to the authentication and delivery thereof, such Debt
Security is delivered to the Trustee for such Debt Security for cancellation by
the Company or any agent thereof upon the failure of the original purchaser
thereof to make payment therefor against delivery thereof, and any Debt Security
so delivered to such Trustee shall be promptly canceled by it. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Debt Securities held by the Trustee for such
Debt Securities shall be disposed of by such Trustee in accordance with its
standard procedures and a certificate of disposition evidencing such disposition
of Debt Securities shall be provided to the Company by such Trustee.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Debt Securities of any particular series, interest on the Debt Securities of
each series shall be computed on the basis of a 360-day year of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Debt Securities of
any Series.
(a) The Company shall be deemed to have satisfied and
discharged the entire indebtedness on all the Debt Securities of any particular
series and, so long as no Event of Default shall be continuing, the Trustee for
the Debt Securities of such series, upon Company Request and at the expense of
the Company, shall
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execute proper instruments acknowledging satisfaction and discharge
of such indebtedness, when:
(1) either
(A) all Debt Securities of such series theretofore
authenticated and delivered (other than (i) any Debt
Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Debt Securities of such series for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in the last paragraph of Section 1003) have been
delivered to such Trustee for cancellation; or
(B) with respect to all Outstanding Debt Securities
of such series described in (A) above not theretofore so
delivered to the Trustee for the Debt Securities of such
series for cancellation:
(i) the Company has deposited or caused
to be deposited with such Trustee as trust funds in
trust an amount (except as otherwise specified
pursuant to Section 301 for the Debt Securities of
such series), sufficient to pay and discharge the
entire indebtedness on all such Outstanding Debt
Securities of such series for principal (and premium,
if any) and interest, if any, to the Stated Maturity
or any Redemption Date as contemplated by Section
402, as the case may be; or
(ii) the Company has deposited or caused
to be deposited with such Trustee as obligations in
trust such amount of U.S. Government Obligations as
will as evidenced by a Certificate of a Firm of
Independent Public Accountants delivered to such
Trustee, together with the predetermined and certain
income to accrue thereon (without consideration of
any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all
such Outstanding Debt Securities of such series for
unpaid principal (and premium, if any) and interest,
if any, to the Stated Maturity or any Redemption Date
as contemplated by Section 402, as the case may be;
or
(iii) the Company has deposited or caused
to be deposited with such Trustee in trust an amount
equal to the amount referred to in clause (i) or (ii)
in any combination;
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(2) the Company has paid or caused to be paid all other sums
payable with respect to the Debt Securities of such series;
(3) the Company has delivered to such Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the entire indebtedness on all Debt Securities of such
series have been complied with; and
(4) if the Debt Securities of such series are not to become
due and payable at their Stated Maturity within one year of the date of
such deposit or are not to be called for redemption within one year of
the date of such deposit under arrangements satisfactory to such
Trustee as of the date of such deposit, then the Company shall have
given, not later than the date of such deposit, notice of such deposit
to the Holders of such Debt Securities.
(b) Upon the satisfaction of the conditions set forth in this
Section 401 with respect to all the Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company, and the Holders of the Debt Securities of such
series shall look for payment only to the funds or obligations deposited with
the Trustee pursuant to Section 401(a)(1)(B); provided, however, that in no
event shall the Company be discharged from (i) any payment obligations in
respect of Debt Securities of such series which are deemed not to be Outstanding
under clause (3) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (ii) from any obligations
under Sections 402(b), 607 and 610 and (iii) from any obligations under Sections
305 and 306 (except that Debt Securities of such series issued upon registration
of transfer or exchange or in lieu of mutilated, destroyed, lost or stolen Debt
Securities shall not be obligations of the Company) and Sections 701 and 1002;
and provided, further, that in the event a petition for relief under the
Bankruptcy Act of 1978 or Title 11 of the United States Code or a successor
statute is filed and not discharged with respect to the Company within 91 days
after the deposit, the entire indebtedness on all Debt Securities of such series
shall not be discharged, and in such event the Trustee shall return such
deposited funds or obligations as it is then holding to the Company upon Company
Request.
SECTION 402. Application of Trust Money.
(a) All money and obligations deposited with the Trustee for
any series of Debt Securities pursuant to Section 401 shall be held irrevocably
in trust and shall be made under the terms of an escrow trust agreement in form
satisfactory to such Trustee. Such money and obligations shall be applied by
such Trustee, in
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accordance with the provisions of the Debt Securities, this Indenture and such
escrow trust agreement, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as such Trustee may
determine, to the Persons entitled thereto, of the principal of (and premium, if
any) and interest, if any, on the Debt Securities for the payment of which such
money and obligations have been deposited with such Trustee. If Debt Securities
of any series are to be redeemed prior to their Stated Maturity, whether
pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the Company shall make such arrangements as
are satisfactory to the Trustee for such series of Debt Securities for the
giving of notice of redemption by such Trustee in the name, and at the expense,
of the Company.
(b) The Company shall pay and shall indemnify the Trustee for
any series of Debt Securities against any tax, fee or other charge imposed on or
assessed against U.S. Government Obligations deposited pursuant to Section 401
or the interest and principal received in respect of such U.S. Government
Obligations other than any such tax, fee or other charge which by law is payable
by or on behalf of Holders. The obligation of the Company under this Section
402(b) shall be deemed to be an obligation of the Company under Section 607(2).
(c) Anything in this Article Four to the contrary
notwithstanding, the Trustee for any series of Debt Securities shall deliver or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 401 which, as expressed
in a Certificate of a Firm of Independent Public Accountants delivered to such
Trustee, are in excess of the amount thereof which would then have been required
to be deposited for the purpose for which such money or U.S. Government
Obligations were deposited or received provided such delivery can be made
without liquidating any U.S. Government Obligations.
SECTION 403. Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section
401 as to the satisfaction and discharge of each series of Debt Securities
issued hereunder, and if the Company has paid or caused to be paid all other
sums payable under this Indenture, this Indenture shall cease to be of any
further effect (except as otherwise provided herein). Upon Company Request and
receipt of an Opinion of Counsel and an Officers' Certificate complying with the
provisions of Section 102, the Trustees for all series of Debt Securities (at
the expense of the Company) shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, any obligations of the Company under Sections 304, 305, 306, 402(b),
607, 610, 701 and 1002 and the obligations of the
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Trustee for any series of Debt Securities under Section 402 shall survive.
SECTION 404. Reinstatement.
If the Trustee for any series of Debt Securities is unable to
apply any of the amounts (for purposes of this Section 404, "Amounts") or U.S.
Government Obligations, as the case may be, described in Section 401(a)(1)(B)(i)
or (ii), respectively, in accordance with the provisions of Section 401 by
reason of any legal proceeding or any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Debt
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee for such
series is permitted to apply all such Amounts or U.S. Government Obligations, as
the case may be, in accordance with the provisions of Section 401; provided,
however, that if, due to the reinstatement of its rights or obligations
hereunder, the Company has made any payment of principal of (or premium, if any)
or interest, if any, on such Debt Securities, the Company shall be subrogated to
the rights of the Holders of such Debt Securities to receive payment from such
Amounts or U.S. Government Obligations, as the case may be, held by the Trustee
for such series.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to any
particular series of Debt Securities, unless otherwise specified in the Debt
Security or the Board Resolution with respect to that series of Debt Securities,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any installment of interest upon
any Debt Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Debt Security of that series at its
Maturity; or
(3) default in the performance of, or breach of, any
covenant or warranty of the Company in respect of any Debt
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Security of that series contained in this Indenture or in such Debt
Securities (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which expressly has been included in this Indenture
solely for the benefit of Debt Securities of a series other than that
series) or in the applicable Board Resolution under which such series
is issued as contemplated by Section 301 and continuance of such
default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee for the
Debt Securities of such series or to the Company and such Trustee by
the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(4) if an event of default with respect to any other series of
Debt Securities or as defined in any mortgage, indenture, security
agreement or other instrument under which there may be issued, or by
which there may be secured or evidenced, any Indebtedness of the
Company for money borrowed in excess of $10 million principal amount,
whether such Indebtedness now exists or shall hereafter be created,
shall happen and, if such Indebtedness is not already matured in
accordance with its terms, shall result in such Indebtedness becoming
or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not have
been rescinded or annulled or such Indebtedness shall not have been
discharged, in either case, within a period of ten days after there has
been given, by registered or certified mail in the manner set forth in
Section 105, to the Company by the Trustee for the Debt Securities of
that particular series referred to in the first clause of this Section
501 or to the Company and such Trustee by the Holders of at least 25%
in principal amount of the Outstanding Debt Securities of that
particular series referred to in the first clause of this Section 501 a
written notice specifying such event of default and requiring the
Company to cause such acceleration to be rescinded or annulled or to
cause such Indebtedness to be discharged and stating that such notice
is a "Notice of Default" hereunder; provided, that if prior to the
entry of judgment in favor of the Trustee, such default under such
indenture or instrument shall be remedied or cured by the Company or
waived by the holders of such Indebtedness, then the Event of Default
hereunder shall be deemed likewise to have been remedied, cured or
waived; and provided, further, that, if such default results from an
action of the United States government or a foreign government which
prevents the Company from performing its obligations under such
agreement, indenture or instrument, the occurrence of such default will
not be an Event of Default hereunder; and provided, further, however,
that, subject to the provisions of Sections 601 and 602, such Trustee
shall not be deemed to have
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knowledge of such default unless either (A) a Responsible Officer of
such Trustee assigned to its Corporate Trustee Administration
Department shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the Company,
from the Holders of 10% or more in principal amount of the Outstanding
Debt Securities of such other series, from the holder of any such
Indebtedness or from the trustee under any such mortgage, indenture,
security agreement or other instrument; or
(5) the entry against the Company of one or more judgments,
decrees or orders by a court having jurisdiction in the premises from
which no appeal may be or is taken for the payment of money, either
individually or in the aggregate, in excess of $10 million and the
continuance of such judgment, decree or order unsatisfied and in effect
for any period of 60 consecutive days without a stay of execution and
there has been given, by registered or certified mail in the manner set
forth in Section 105, to the Company by the Trustee for the Debt
Securities of such series or to the Company and such Trustee by the
Holders of at least 25% in principal amount of the Outstanding Debt
Securities of such series a written notice specifying such entry and
continuance of such judgment, decree or order and stating that such
notice is a "Notice of Default" hereunder; provided, however, that
subject to the provisions of Sections 601 and 602, such Trustee shall
not be deemed to have knowledge of such entry and continuance of such
judgment, decree or order unless either (A) a Responsible Officer of
such Trustee assigned to its Corporate Trustee Administration
Department shall have actual knowledge thereof or (B) the Trustee shall
have received written notice thereof from the Company or from the
Holders of 10% or more in principal amount of the Outstanding Debt
Securities of such series; or
(6) the Company shall commence any case or proceeding seeking
to have an order for relief entered on its behalf as debtor or to
adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or the
Company shall apply for a receiver, custodian or trustee (other than
any trustee appointed as a mortgagee or secured party in connection
with the issuance of indebtedness for borrowed money of the Company) of
it or for all or a substantial part of its property; or the Company
shall make a general assignment for the benefit of creditors; or the
Company shall take any corporate action in furtherance of any of the
foregoing; or
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(7) any case or proceeding against the Company shall be
commenced seeking to have an order for relief entered against it or to
adjudicate it as bankrupt or insolvent or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy,
insolvency, reorganization, liquidation, dissolution, arrangement,
composition, readjustment of debt or other similar act or law of any
jurisdiction, domestic or foreign, now or hereafter existing; or a
receiver, custodian or trustee (other than any trustee appointed as a
mortgagee or secured party in connection with the issuance of
indebtedness for borrowed money of the Company) of the Company or for
all or a substantial part of its property shall be appointed in any
such case or proceeding; and such case or proceeding (A) results in the
entry of an order for relief or a similar order against it or (B) shall
continue unstayed and in effect for a period of 60 consecutive days.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to any particular series
of Debt Securities occurs and is continuing, then and in every such case either
the Trustee for the Debt Securities of such series or the Holders of not less
than 25% in principal amount of the Outstanding Debt Securities of that series
may declare the entire principal amount (or, in the case of Discounted Debt
Securities, such lesser amount as may be provided for in the terms of that
series) of all the Debt Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to such Trustee if given
by Holders), and upon any such declaration of acceleration such principal or
such lesser amount, as the case may be, together with accrued interest and all
other amounts owing hereunder, shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee for the Debt Securities of any series as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of that series, by written notice to the Company and
such Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with such Trustee a sum
sufficient to pay (except as otherwise specified pursuant to Section
301 for the Debt Securities of such series)
(A) all overdue interest on all Debt Securities
of that series;
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(B) the principal of (and premium, if any, on) any
Debt Securities of that series which have become due otherwise
than by such declaration of acceleration and interest thereon
from the date such principal became due at a rate per annum
equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt
Securities' Yield to Maturity), to the extent that the payment
of such interest shall be legally enforceable;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at a rate per annum
equal to the rate borne by the Debt Securities of such series
(or, in the case of Discounted Debt Securities, the Debt
Securities' Yield to Maturity); and
(D) all sums paid or advanced by such Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and
counsel and all other amounts due to such Trustee under
Section 607;
and
(2) all Events of Default with respect to the Debt Securities
of such series, other than the nonpayment of the principal of Debt
Securities of that series which has become due solely by such
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest upon any
Debt Security of any series when such interest becomes due and payable
and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Debt Security of any series at
its Maturity;
the Company will, upon demand of the Trustee for the Debt Securities of such
series, pay to it, for the benefit of the Holders of such Debt Securities, the
whole amount then due and payable on such Debt Securities for principal (and
premium, if any) and interest, if any, with interest upon the overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of
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interest at a rate per annum equal to the rate borne by such Debt Securities
(or, in the case of Discounted Debt Securities, the Debt Securities' Yield to
Maturity); and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents
and counsel and all other amounts due to such Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such
demand, such Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceedings to judgment or final decree, and may
enforce the same against the Company and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company,
wherever situated.
If an Event of Default with respect to Debt Securities of any
particular series occurs and is continuing, the Trustee for the Debt Securities
of such series may in its discretion proceed to protect and enforce its rights
and the rights of the Holders of Debt Securities of that series by such
appropriate judicial proceedings as such Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relating to the Company or the property of the Company
or its creditors, the Trustee for the Debt Securities of any series
(irrespective of whether the principal (or lesser amount in the case of
Discounted Debt Securities) of any Debt Security of such series shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether such Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Discounted Debt Securities)
(and premium, if any) and interest, if any, owing and unpaid in respect
of the Debt Securities of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of such Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and
counsel and all other amounts due to such Trustee
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under Section 607) and of the Holders of the Debt Securities
of such series allowed in such judicial proceeding;
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same; and
(iii) unless prohibited by law or applicable regulations, to
vote on behalf of the Holders of the Debt Securities of such series in
any election of a trustee in bankruptcy or other person performing
similar functions;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Debt Securities to make such payments to such Trustee, and in the event that
such Trustee shall consent to the making of such payments directly to the
Holders of Debt Securities, to pay to such Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel, and any other amounts due such Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the
Trustee for the Debt Securities of any series to authorize or consent to or
accept or adopt on behalf of any Holder of a Debt Security any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities of such series or the rights of any Holder thereof, or to authorize
the Trustee for the Debt Securities of any series to vote in respect of the
claim of any Holder in any such proceeding, except as aforesaid, for the
election of a trustee in bankruptcy or other person performing similar
functions.
SECTION 505. Trustee May Enforce Claims Without
Possession of Debt Securities.
All rights of action and claims under this Indenture or the
Debt Securities of any series may be prosecuted and enforced by the Trustee for
the Debt Securities of any series without the possession of any of the Debt
Securities of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by such Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel and all other
amounts due to such Trustee under Section 607, be for the ratable benefit of the
Holders of the Debt Securities of such series in respect of which such judgment
has been recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee for the Debt Securities of
any series pursuant to this Article with respect to the Debt Securities of such
series shall be applied in the following order, at the date or dates fixed by
such Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, if any, upon presentation of the
Debt Securities of such series and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due such Trustee
under Section 607;
Second: To the payment of the amounts then due and unpaid upon
the Debt Securities of such series for principal of (and premium, if
any) and interest, if any, on such Debt Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Debt Securities for principal (and premium, if
any) and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Security of any particular series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) an Event of Default with respect to that series shall have
occurred and be continuing and such Holder shall have previously given
written notice to the Trustee for the Debt Securities of such series of
such default and the continuance thereof;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series shall have made written
request to the Trustee for the Debt Securities of such series to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to such Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(5) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Debt Securities of
that series;
it being understood and intended that no Holder or Holders of Debt Securities of
that series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Debt Securities of that series, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders of Debt Securities of that series.
SECTION 508. Unconditional Right of Holders to Receive Principal (and Premium,
if any) and Interest, if any.
Notwithstanding any other provision in this Indenture, the
Holder of any Debt Security shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest, if any, on such Debt Security on the
respective Stated Maturities expressed in such Debt Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee for the Debt Securities of any series or any
Holder of a Debt Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to such Trustee or to
such Holder, then and in every such case the Company, such Trustee and the
Holders of Debt Securities shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of such Trustee and such
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Debt Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee for the Debt Securities of any series or to the Holders of Debt
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy
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hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee for the Debt Securities of
any series or of any Holder of any Debt Security of such series to exercise any
right or remedy accruing upon any Event of Default with respect to the Debt
Securities of such series shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to such Trustee for the Debt Securities
of any series or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by such Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Debt Securities of any particular series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee for the Debt Securities of such series with respect to
the Debt Securities of that series or exercising any trust or power conferred on
such Trustee with respect to such Debt Securities, provided that:
(1) such direction shall not be in conflict with any
rule of law or with this Indenture; and
(2) such Trustee may take any other action deemed proper by
such Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any particular series may on behalf of the
Holders of all the Debt Securities of that series waive any past default
hereunder with respect to that series and its consequences, except:
(1) a default in the payment of the principal of (or
premium, if any) or interest, if any, on any Debt Security of
that series; or
(2) a default with respect to a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of that series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law,
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee for any series of Debt
Securities, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Debt Securities of any series for which the Trustee is serving as
such,
(1) such Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against such Trustee; and
(2) in the absence of bad faith on its part, such Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to such Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required to be
furnished to such Trustee, such Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to a series of
Debt Securities has occurred and is continuing, the Trustee for the Debt
Securities of such series shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee for Debt Securities of any series from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that no provision of
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this Indenture shall require the Trustee for any series of Debt Securities to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee for any series of Debt Securities shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Debt Securities of any particular series, the Trustee for the
Debt Securities of such series shall give to Holders of Debt Securities of that
series, in the manner set forth in Section 106, notice of such default known to
such Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Debt Security of that
series, or in the deposit of any sinking fund payment with respect to Debt
Securities of that series, such Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of such Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Debt Securities of that series; and provided, further, that in the
case of any default of the character specified in Section 501(3) with respect to
Debt Securities of that series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Debt Securities of that
series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee for any series of Debt Securities may rely and
shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
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Company Order and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture such
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, such
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) such Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) such Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Debt Securities of any series
pursuant to this Indenture for which it is acting as Trustee, unless
such Holders shall have offered to such Trustee security or indemnity
reasonably satisfactory to such Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) such Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but such
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters at it may see fit, and, if
such Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) such Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and such Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of
Debt Securities.
The recitals contained herein and in the Debt Securities,
except the Trustee's certificates of authentication thereof, shall be taken as
the statements of the Company, and neither the Trustee for any series of Debt
Securities, nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee for any series of Debt Securities makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities
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of any series. Neither the Trustee for any series of Debt Securities nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Debt Securities or the proceeds thereof.
SECTION 605. May Hold Debt Securities.
The Trustee for any series of Debt Securities, any
Authenticating Agent, Paying Agent, Debt Security Registrar or any other agent
of the Company or such Trustee, in its individual or any other capacity, may
become the owner or pledgee of Debt Securities and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if
it were not such Trustee, Authenticating Agent, Paying Agent, Debt Security
Registrar or other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee for any series of Debt Securities in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee for any series of Debt Securities shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee for any series of Debt Securities
from time to time reasonable compensation for all services rendered by
it hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee for any series of Debt Securities upon its
request for all reasonable expenses, disbursements and advances
incurred or made by such Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify such 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 trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee for any series of Debt
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Securities shall have a lien prior to the Debt Securities upon all property and
funds held or collected by such Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) or interest, if any, on any
particular series Debt Securities. Such lien shall survive satisfaction and
discharge of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for any series of Debt Securities shall be subject
to and comply with the provisions of Section 310(b) of the Trust Indenture Act
during the period of time required thereby. Nothing herein shall prevent the
Trustee for any series of Debt Securities from filing with the Commission the
application referred to in the penultimate paragraph of Section 310(b) of the
Trust Indenture Act. In determining whether the Trustee for any series of Debt
Securities has a conflicting interest as defined in Section 310(b) of the Trust
Indenture Act, the Debt Securities of any other series of Debt Securities shall
be excluded.
SECTION 609. Corporate Trustee Required, Different Trustees for
Different Series; Eligibility.
There shall at all times be a Trustee hereunder for the Debt
Securities of each series which satisfies the requirements of Trust Indenture
Act Sections 310(a)(1), 310(a)(2) and 310(a)(5), has a combined capital and
surplus of at least $50,000,000 and is subject to supervision or examination by
Federal, State or District of Columbia authority. A different Trustee may be
appointed by the Company for each series of Debt Securities prior to the
issuance of such Debt Securities. If the initial Trustee for any series of Debt
Securities is to be other than The Fifth Third Bank, the Company and such
Trustee shall, prior to the issuance of such Debt Securities, execute and
deliver an indenture supplemental hereto, which shall provide for the
appointment of such Trustee as Trustee for the Debt Securities of such series
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-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee. If at any time the Trustee for the Debt Securities of
any series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee for the Debt
Securities of any series and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.
(b) The Trustee for the Debt Securities of any series may
resign at any time with respect to the Debt Securities of such series by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to the
Trustee for the Debt Securities of such series within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Debt Securities of such series.
(c) The Trustee for the Debt Securities of any series may be
removed at any time with respect to the Debt Securities of such series by Act of
the Holders of a majority in principal amount of the Outstanding Debt Securities
of such series, delivered to such Trustee and to the Company.
(d) If at any time:
(1) the Trustee for the Debt Securities of any series
shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608 after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Debt Security of such series for at least six
months unless the Trustee's duty to resign is stayed in
accordance with Section 310(b) of the Trust Indenture Act, or
(2) such Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) such Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
such Trustee or of its property shall be appointed or any
public officer shall take charge or control of such Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove such
Trustee or (ii) any Holder who has been a bona fide Holder of a Debt Security of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of such Trustee and the appointment of a successor Trustee.
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(e) If the Trustee for the Debt Securities of any series shall
resign, be removed or become incapable of acting, or if a vacancy shall occur in
the office of Trustee for the Debt Securities of any series for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee with
respect to the Debt Securities of such series and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of such series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 611, become the successor Trustee for the Debt Securities of such series
and supersede the successor Trustee appointed by the Company. If no successor
Trustee for the Debt Securities of such series shall have been so appointed by
the Company or the Holders and shall have accepted appointment in the manner
required by Section 611, and if such Trustee is still incapable of acting, any
Holder who has been a bona fide Holder of a Debt Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Debt Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series in the manner and to the extent provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Debt
Securities of that series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) Every such successor Trustee appointed hereunder with
respect to the Debt Securities of any series shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject to the lien provided for in Section
607.
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(b) In case of the appointment hereunder of a successor
Trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to the
Debt Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and each Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Debt Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in Subsections (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee for the Debt Securities of
any series shall be qualified and eligible under this Article.
(e) Notwithstanding replacement of the Trustee pursuant to
Section 610, the Company's obligations under Section 607 shall continue for the
benefit of the retiring Trustee with respect to expenses, losses and liabilities
incurred by it prior to such replacement.
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SECTION 612. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee or the Authenticating
Agent, as the case may be, for the Debt Securities of any series may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee or such
Authenticating Agent, as the case may be, shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of such
Trustee, shall be the successor of such Trustee or such Authenticating Agent, as
the case may be, hereunder, provided such successor corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties hereto
or the Trustee, the Authenticating Agent or their respective successor
corporations. In case any Debt Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee or Authenticating Agent, as the case may be, may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee or successor Authenticating Agent had
itself authenticated such Debt Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee for any particular series of Debt Securities shall
comply with Section 311(a) of the Trust Indenture Act for that particular series
of Debt Securities, excluding any creditor relationship listed in Section 311(b)
of that Act. If the Trustee for any particular series of Debt Securities shall
resign or be removed as Trustee for that particular series of Debt Securities,
it shall be subject to Section 311(a) of the Trust Indenture Act to the extent
provided therein.
SECTION 614. Authenticating Agents.
From time to time the Trustee for the Debt Securities of any
series may, subject to its sole discretion, appoint one or more Authenticating
Agents with respect to the Debt Securities of such series, which may include the
Company or any Affiliate of the Company, with power to act on the Trustee's
behalf and subject to its discretion in the authentication and delivery of Debt
Securities of such series in connection with transfers and exchanges hereunder,
including but not limited to those pursuant to Sections 304, 305, 306 and 1107,
as fully to all intents and purposes as though such Authenticating Agent had
been expressly authorized by those Sections of this Indenture to authenticate
and deliver Debt Securities of such series. For all purposes of this Indenture,
the authentication and delivery of Debt Securities of such series by an
Authenticating Agent for such Debt Securities pursuant to this Section shall be
deemed to be authentication and
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delivery of such Debt Securities "by the Trustee" for the Debt Securities of
such series. Any such Authenticating Agent shall at all times be a corporation
organized and doing business under the laws of the United States or of any
State, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal, State or District of Columbia authority. If such
Authenticating Agent publishes reports of condition at least annually pursuant
to law or the requirements of such supervising or examining authority, then for
the purposes of this Section the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent for any series of Debt Securities shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Authenticating Agent for any series of Debt Securities may
resign at any time by giving written notice of resignation to the Trustee for
such series and to the Company. The Trustee for any series of Debt Securities
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent and to the Company in
the manner set forth in Section 105. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time any Authenticating Agent for
any series of Debt Securities shall cease to be eligible under this Section, the
Trustee for such series may appoint a successor Authenticating Agent, shall give
written notice of such appointment to the Company and shall give written notice
of such appointment to all Holders of Debt Securities of such series in the
manner set forth in Section 106. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee for the Debt Securities of each series agrees to
pay to any Authenticating Agent for such series from time to time reasonable
compensation for its services, and such Trustee shall be entitled to be
reimbursed for such payments, subject to Section 607.
If an appointment with respect to one or more series of Debt
Securities is made pursuant to this Section, the Debt Securities of such series
may have endorsed thereon, in addition to the Trustee's certification of
authentication, an alternate certificate of authentication in the following
form:
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"This is one of the Debt Securities, of the series
designated herein, described in the within-mentioned Indenture.
__________________________________
By:_______________________
As Authenticating Agent
By:_______________________
Authorized Officer"
ARTICLE SEVEN
HOLDERS' REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Preservation of Information; Company to Furnish
Trustee Names and Addresses of Holders.
The Trustee for any particular series of Debt Securities shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Holders of the Debt Securities of
that series. Neither the Company nor such Trustee shall be under any
responsibility with regard to the accuracy of such list. With respect to each
series of Debt Securities, the Company, in furnishing information regarding such
Holders to such Trustee, and such Trustee, will satisfy the requirements imposed
upon each of them by Section 312(a) of the Trust Indenture Act.
SECTION 702. Communications to Holders.
Holders of any particular series of Debt Securities may
communicate with other Holders of Debt Securities of that series with respect to
their rights under this Indenture or under such series of Debt Securities
pursuant to Section 312(b) of the Trust Indenture Act. The Company and the
Trustee for any particular series of Debt Securities and any and all other
Persons benefitted by this Indenture shall have the protection afforded by
Section 312(c) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
Within 60 days after November 15 of each year commencing with
the year following the first issuance of Debt Securities, the Trustee for the
Debt Securities of each series shall transmit by mail to all Holders of the Debt
Securities of such series a brief report dated as of such date that complies
with Section 313(a) of the Trust Indenture Act, but only if such report is
required in any year under such Section 313(a) of the Trust Indenture Act. With
respect to each series of Debt
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Securities, the Trustee shall also comply with Sections 313(b) and 313(c) of the
Trust Indenture Act. At any time a report is mailed to the Holders of any
particular series of Debt Securities, a copy of such report shall be filed with
the Commission and with each securities exchange, if any, on which the Debt
Securities of such series are listed. With respect to each series of Debt
Securities, the Company will notify the applicable Trustee when such series of
Debt Securities is listed on any securities exchange.
SECTION 704. Reports by Company.
The Company shall file such annual and/or periodic reports and
certificates with the Trustees for each series of Debt Securities and/or with
the Commission and/or with the Holders of each series of Debt Securities as are
required by the provisions of Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
corporation or sell, convey, assign, transfer, lease or otherwise dispose of all
or substantially all of its properties and assets as an entirety to any Person
unless:
(1) either (i) the Company shall be the continuing corporation
or (ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company as an entirety (x) shall be a corporation, partnership or
trust organized and validly existing under the laws of the United
States or any State thereof or the District of Columbia and (y) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Debt Securities and the performance and observance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction (and
treating any Indebtedness not previously an obligation of the Company
or a Subsidiary which becomes the obligation of the Company or any of
its Subsidiaries in
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connection with or as a result of such transaction as having been
incurred at the time of such transaction), no Event of Default, and no
event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing;
(3) such other conditions, if any, as may be set forth
in the Board Resolution establishing the Debt Securities of
that particular series are met or complied with; and
(4) the Company has delivered to the Trustee for each series
of Debt Securities an Officers' Certificate and an Opinion of Counsel
each stating that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or disposition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor corporation formed by
such consolidation or into which the Company is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor corporation had been named as the Company
herein and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Debt Securities and, in
the event of any such consolidation, merger, conveyance or transfer, the Company
as the predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up, or liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Debt Securities, the
Company, when authorized by a Board Resolution, and the Trustee for the Debt
Securities of any or all series, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to such
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation
to the Company, and the assumption by any such successor of
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the covenants of the Company herein and in the Debt
Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any particular series of Debt Securities (and, if
such covenants are to be for the benefit of fewer than all series of
Debt Securities, stating that such covenants are being included solely
for the benefit of such series), or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
any or all series of Debt Securities (and, if any such Event of Default
applies to fewer than all series of Debt Securities, stating each
series to which such Event of Default applies); or
(4) to add to, change or eliminate any of the provisions of
this Indenture, provided, however, that any such addition, change or
elimination shall become effective only when there is no Debt Security
Outstanding of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such
provision and as to which such supplemental indenture would apply; or
(5) to evidence and provide for the acceptance of appointment
hereunder of a Trustee other than The Fifth Third Bank as Trustee for a
series of Debt Securities and to add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt 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 611(b); or
(7) to establish the conditions, limitations and restrictions
on the authorized amount, form, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth,
and other conditions, limitations and restrictions thereafter to be
observed; or
(8) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
satisfaction and discharge of any series of Debt Securities pursuant to
Section 401; provided, however, that any such action shall not
adversely affect the interests of the Holders of Debt Securities of
such series
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or any other series of Debt Securities in any material
respect; or
(9) to add to or change or eliminate any provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee for the Debt Securities of any series or to
surrender any right or power herein conferred upon the Company, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect
the interests of the Holders of Debt Securities of any particular
series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
The Company, when authorized by a Board Resolution, and the
Trustee for the Debt Securities of any or all series may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of such Debt Securities
under this Indenture, but only with the consent of the Holders of more than 50%
in aggregate principal amount of the Outstanding Debt Securities of each series
of Debt Securities then Outstanding affected thereby, in each case by Act of
said Holders of Debt Securities of each such series delivered to the Company and
the Trustee for Debt Securities of each such series; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security, or
reduce the principal amount thereof or the rate of interest thereon, if
any, or any premium payable upon the redemption thereof, or reduce the
amount of the principal of a Discounted Debt Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change the Place of Payment, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date); or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any particular series, the consent of
whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is
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required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section
513 or 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Debt Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Debt Security with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1008, or the deletion of this proviso, in
accordance with the requirements of Sections 609, 611(b), 901(6) and
901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or which modifies
the rights of the Holders of Debt Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee for any series of
Debt Securities shall be entitled to receive, and (subject to Section 601) shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee for any series of Debt Securities may, but shall not be
obligated to, enter into any such supplemental indenture which affects such
Trustee's own rights, liabilities, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Debt Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
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SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental
Indentures.
Debt Securities of any particular series authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee for the Debt Securities of
such series, bear a notation in form approved by such Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Debt Securities of any series so modified as to conform, in the opinion of
the Trustee for the Debt Securities of such series and the Board of Directors,
to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by such Trustee in exchange for Outstanding Debt
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal (and Premium, if any) and Interest, if any.
The Company agrees, for the benefit of each particular series
of Debt Securities, that it will duly and punctually pay (except as otherwise
specified pursuant to Section 301 for the Debt Securities of such series) the
principal of (and premium, if any) and interest, if any, on that series of Debt
Securities in accordance with the terms of the Debt Securities of such series
and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for a
series of Debt Securities an office or agency where Debt Securities of that
series may be presented or surrendered for payment, where Debt Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company with respect to the Debt
Securities of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee for the Debt Securities of that series
of the location, and any change in the location, of any such office or agency.
If at any time the Company shall fail to maintain any such required office or
agency in respect of any series of Debt Securities or shall fail to furnish the
Trustee for the Debt Securities of that series with the address thereof, such
presentations (to the extent permitted
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by law) and surrenders of Debt Securities of that series may be made and notices
and demands may be made or served at the Corporate Trust Office of such Trustee,
and the Company hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Place of Payment) where the Debt
Securities of one or more series may be presented or surrendered for any or all
of the purposes specified above in this Section and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for such purpose. The Company will
give prompt written notice to the Trustee for the Debt Securities of each series
so affected of any such designation or rescission and of any change in the
location of any such office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any particular series of Debt Securities, it will, on or not
more than one Business Day before each due date of the principal of (and
premium, if any) or interest, if any, on any of the Debt Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum (except as otherwise specified pursuant to Section 301 for the
Debt Securities of such series) sufficient to pay the principal (and premium, if
any) and interest, if any, so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee for the Debt Securities of such series of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for
any particular series of Debt Securities, it will, prior to each due date of the
principal of (and premium, if any) or interest, if any, on any such Debt
Securities, deposit with a Paying Agent for the Debt Securities of such series a
sum sufficient to pay the principal (and premium, if any) and interest, if any,
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee for the Debt
Securities of such series) the Company will promptly notify such Trustee of its
action or failure so to act.
The Company will cause each Paying Agent for any particular
series of Debt Securities other than the Trustee for the Debt Securities of such
series to execute and deliver to such Trustee an instrument in which such Paying
Agent shall agree with such Trustee, subject to the provisions of this Section,
that such Paying Agent will:
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(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Debt Securities of
that series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(2) give such Trustee notice of any default by the Company in
the making of any payment of principal (or premium, if any) and
interest, if any, on Debt Securities of that series;
(3) at any time during the continuation of any such default,
upon the written request of such Trustee, forthwith pay to such Trustee
all sums so held in trust by such Paying Agent; and
(4) acknowledge, accept and agree to comply in all respects
with the provisions of this Indenture relating to the duties, rights
and disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee for the Debt
Securities of any series all sums held in trust by the Company or such Paying
Agent, such sums to be held by such Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to such Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee for the Debt Securities
of any series or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) and interest, if any, on any
Debt Security of any particular series and remaining unclaimed for two years
after such principal (and premium, if any) and interest, if any, has become due
and payable shall, unless otherwise required by mandatory provisions of
applicable escheat, abandoned or unclaimed property law, be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trusts; and the Holder of such Debt Security shall, thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of such Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that such Trustee or such Paying Agent, before being
required to make any such repayment may mail written notice to each such Holder
of such Debt Security in the manner set forth in Section 106, or may, in its
discretion, in the name and at the expense of the Company, cause to be published
at least once in a newspaper published in the English language customarily on
each Business Day and of general circulation in the Borough of Manhattan, the
City of New York, notice, that such money remains
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unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing or publication, any unclaimed balance of
such money then remaining will, unless otherwise required by mandatory
provisions of applicable escheat, abandoned or unclaimed property law, be repaid
to the Company.
SECTION 1004. Payment of Taxes and Other Claims.
The Company shall 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 it or upon its income, profits
or property, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon its property; provided, however, that
the Company 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.
SECTION 1005. Maintenance of Properties.
The Company shall cause all its properties used or useful in
the conduct of its business 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 Company 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 Company from discontinuing the operation and maintenance of any of
its properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any material
respect to the Holders.
SECTION 1006. Statements as to Compliance.
(a) The Company shall deliver to the Trustee for each series
of Debt Securities, within 120 days after the end of each fiscal year, a written
statement signed by the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President and by the Treasurer, a Deputy Treasurer, an
Assistant Treasurer, the Controller or an Assistant Controller of the Company,
stating, as to each signer thereof, that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision; and
(2) to the best of his knowledge, based on such review, the
Company is not in default in the fulfillment of any of its obligations
under this Indenture with respect to
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the Debt Securities of such series, or specifying each such default
known to him and the nature and status thereof.
For purposes of this Subsection, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) When any event has occurred and is continuing which is, or
after the giving of notice or lapse of time or both would become, an Event of
Default, or if the Trustee or any Holder of Debt Securities of any series or the
trustee for or the holder of any other evidence of Indebtedness of the Company
or any Subsidiary gives any notice or takes any other action with respect to a
claimed default (other than with respect to Indebtedness in the principal amount
of less than $10,000,000), the Company shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
occurrence.
SECTION 1007. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders; and provided, further, however, that the foregoing shall not prohibit a
sale, transfer or conveyance of a Subsidiary or any of its assets in compliance
with the terms of this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1004 to 1007, inclusive, or set
forth in any Board Resolution establishing the Debt Securities of a series, if
before or after the time for such compliance the Holders of more than 50% in
principal amount of the Outstanding Debt Securities of each series of Debt
Securities affected by the omission shall, in each case by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee for the Debt Securities of each series with respect to any such
covenant or condition shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of This Article.
Redemption of Debt Securities of any series (whether by
operation of a sinking fund or otherwise) as permitted or required by any form
of Debt Security issued pursuant to this Indenture shall be made in accordance
with such form of Debt Security and this Article; provided, however, that if any
provision of any such form of Debt Security shall conflict with any provision of
this Article, the provision of such form of Debt Security shall govern.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities of
any series shall be evidenced by or pursuant to a Board Resolution. In case of
any redemption at the election of the Company of less than all of the Debt
Securities of any particular series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee for the Debt Securities of such series) notify such
Trustee by Company Request of such Redemption Date and of the principal amount
of Debt Securities of that series to be redeemed and shall deliver to such
Trustee such documentation and records as shall enable such Trustee to select
the Debt Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Debt Securities of any series prior to the expiration of any
restriction on such redemption provided in the terms of such Debt Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee for Debt
Securities of such series with an Officers' Certificate evidencing compliance
with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to Be Redeemed.
If less than all the Debt Securities are to be redeemed, the
Company may select the series to be redeemed, and if less than all the Debt
Securities of any series are to be redeemed, the particular Debt Securities of
that series to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee for the Debt Securities of such series, from the
Outstanding Debt Securities of that series not previously called for redemption,
by such method as such Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Debt Securities of that series, or any integral
multiple thereof) of the principal amount of Debt Securities of that series of a
denomination larger than the
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minimum authorized denomination for Debt Securities of that series pursuant to
Section 302.
The Trustee for the Debt Securities of any series to be
redeemed shall promptly notify the Company in writing of the Debt Securities of
such series selected for redemption and, in the case of any Debt Securities
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 Debt Securities
shall relate, in the case of any Debt Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Debt Securities which
has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 not later than the thirtieth day and not earlier than the sixtieth
day prior to the Redemption Date, to each Holder of Debt Securities to be
redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of a
particular series are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the particular Debt
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security or portion thereof, and that
interest thereon, if any, shall cease to accrue on and after said date,
(5) the place or places where such Debt Securities,
are to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such
is the case.
Notice of redemption of Debt Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee for such Debt Securities in the name and at the expense
of the Company.
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SECTION 1105. Deposit of Redemption Price.
Prior to the opening of business on any Redemption Date, the
Company shall deposit with the Trustee for the Debt Securities to be redeemed or
with a Paying Agent for such Debt Securities (or, if the Company is acting as
its own Paying Agent for such Debt Securities, segregate and hold in trust as
provided in Section 1003) an amount of money (except as otherwise specified
pursuant to Section 301 for the Debt Securities of such Series) sufficient to
pay the principal amount of (and premium, if any, thereon), and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Debt Securities which are to be redeemed on that date.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (except as otherwise provided
pursuant to Section 301 for the Debt Securities of such series) and from and
after such date (unless the Company shall default in the payment of the
Redemption Price) such Debt Securities shall cease to bear interest. Upon
surrender of such Debt Security for redemption in accordance with said notice,
such Debt Security or specified portions thereof shall be paid by the Company at
the Redemption Price; provided, however, that unless otherwise specified as
contemplated by Section 301, installments of interest on Debt Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Debt Securities, or one or more Predecessor Debt Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal thereof (and premium,
if any, thereon) shall, until paid, bear interest from the Redemption Date at a
rate per annum equal to the rate borne by the Debt Security (or, in the case of
Discounted Debt Securities, the Debt Security's Yield to Maturity).
SECTION 1107. Debt Securities Redeemed in Part.
Any Debt Security which is to be redeemed only in part shall
be surrendered at the Place of Payment (with, if the Company or the Trustee for
such Debt Security so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Debt Security Registrar for
such Debt Security duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute and such Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities, of any authorized denomination
as
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requested by such Holder, of the same series and having the same terms and
provisions and in an aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of This Article.
Redemption of Debt Securities through operation of a sinking
fund as permitted or required by any form of Debt Security issued pursuant to
this Indenture shall be made in accordance with such form of Debt Security and
this Article; provided, however, that if any provision of any such form of Debt
Security shall conflict with any provision of this Article, the provision of
such form of Debt Security shall govern.
The minimum amount of any sinking fund payment provided for by
the terms of Debt Securities of any particular 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 Debt Securities of any particular series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Debt Securities of any particular series, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Debt Securities
of any particular series as provided for by the terms of Debt Securities of that
series.
SECTION 1202. Satisfaction of Sinking Fund Payments With
Debt Securities.
The Company (1) may deliver Outstanding Debt Securities of a
series (other than any previously called for redemption), and (2) may apply as a
credit Debt Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Debt Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Debt Securities of such series
required to be made pursuant to the terms of such Debt Securities as provided
for by the terms of such series; provided, however, that such Debt Securities
have not been previously so credited. Such Debt Securities shall be received and
credited for such purpose by the Trustee for such Debt Securities at the
principal amount thereof and the amount of such sinking fund payment shall be
reduced accordingly.
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SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any particular series of Debt Securities, the Company will deliver to the
Trustee for the Debt Securities of such series an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash (except as otherwise specified
pursuant to Section 301 for the Debt Securities of that series) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to Section 1202 and shall state the basis for
such credit and that such Debt Securities have not previously been so credited
and will also deliver to such Trustee any Debt Securities to be so delivered.
Such Trustee shall select the Debt Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Debt Securities shall be made upon the terms and
in the manner stated in Sections 1105, 1106 and 1107.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture dated as of February 15, 1994 to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the
15TH day of FEBRUARY, 1994.
XXXXXXXX BRANDS INTERNATIONAL, INC.
[SEAL]
By/S/ XXXXXXX XXXXXXXX
___________________________________
Title:Vice President and Controller
Attest:[No Signature]
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THE FIFTH THIRD BANK,
Trustee
[SEAL]
By/S/ XXXXX XXXX
____________________________
Title: Senior Trust Officer
Attest:[Signature]
72
STATE OF OHIO )
) ss.:
COUNTY OF XXXXXXXX )
On the 11TH day of FEBRUARY, 1994, before me personally came
XXXXXXX XXXXXXXX, to me known, who, being by me duly sworn, did depose and say
that he resides at 0000 XXXXXXXX XXXX, XXXXXXXXXX, XX 00000; that he is a VICE
PRESIDENT AND CONTROLLER of XXXXXXXX BRANDS INTERNATIONAL, INC., one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that one of the seals affixed to the
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
XXXXXXX X. XXXXXXX
_____________________
Notary Public
Commission Expires_______
[XXXXXXX X.XXXXXXX
Notary Public, State of Ohio
My Commission Expires July 19, 1996]
[SEAL]
73
STATE OF OHIO )
) ss.:
COUNTY OF XXXXXXXX )
On the 11TH day of FEBRUARY, 1994, before me personally came
XXXXX XXXXX, to me known, who, being by me duly sworn, did depose and say that
he resides at 000 XXXXX XXXXXX, XXXXX., XXXX, that he is a SENIOR TRUST OFFICER
of THE FIFTH THIRD BANK, one of the corporations described in and which executed
the above instrument, that he knows the corporate seal of said corporation; that
one of the seals affixed to the said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said corporation, and
that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
XXXXX X. XXXXXXX
______________________________
Notary Public,
Commission Expires____________
[XXXXX X.XXXXXXX
Notary Public, State of Ohio
My Commission Expires April 12, 1995]
[SEAL]
