EXHIBIT 4.12
FORM OF INDENTURE RELATING TO SUBORDINATED DEBT
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LONE STAR TECHNOLOGIES, INC.
and
------------------,
Trustee
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INDENTURE
Dated as of
---------- ---, ----
SUBORDINATED DEBT SECURITIES
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE DATED AS OF ___________
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Section of Trust Indenture Section(s) of Act of 1939 Indenture
-------------------------- -----------------------------------
Section 310
(a)(1)................................. 609
(a)(2)................................. 609
(a)(3)................................. Not Applicable
(a)(4)................................. Not Applicable
(b).................................... 608, 610
Section 311
(a).................................... 613
(b).................................... 613
(c).................................... Not Applicable
Section 312
(a).................................... 701, 702(a)
(b).................................... 702(b)
(c).................................... 702(c)
Section 313
(a).................................... 703(a)
(b).................................... 703(b)
(c).................................... 703(c)
(d).................................... 703(d)
Section 314
(a).................................... 704
(b).................................... Not Applicable
(c)(1)................................. 102
(c)(2)................................. 102
(c)(3)................................. Not Applicable
(d).................................... Not Applicable
(e).................................... 102
Section 315
(a).................................... 601(a)
(b).................................... 602
(c).................................... 601(b)
(d).................................... 601(c)
(d)(1)................................. 601(a)
(d)(2)................................. 601(c)(2)
(d)(3)................................. 601(c)(3)
(e).................................... 514
Section 316
(a)(1)(A).............................. 502, 512
(a)(1)(B).............................. 513
(a)(2)................................. Not Applicable
(a)(last sentence)..................... 101
(b).................................... 508
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.
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.....................................................1
SECTION 102. Compliance Certificates and Opinions............................9
SECTION 103. Form of Documents Delivered to Trustee..........................9
SECTION 104. Acts of Holders................................................10
SECTION 105. Notices, etc., to Trustee and Company..........................12
SECTION 106. Notice to Holders of Securities; 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............................................14
SECTION 111. Benefits of Indenture..........................................14
SECTION 112. Governing Law..................................................14
SECTION 113. Legal Holidays.................................................14
SECTION 114. Language of Notices, Etc.......................................14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally................................................14
SECTION 202. Form of Trustee's Certificate of Authentication................15
SECTION 203. Securities in Global Form......................................15
SECTION 204. Form of Legend for Book-Entry Securities.......................16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series...........................16
SECTION 302. Denominations..................................................19
SECTION 303. Execution, Authentication, Delivery and Dating.................19
SECTION 304. Temporary Securities...........................................21
SECTION 305. Registration, Registration of Transfer and Exchange............24
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons...27
SECTION 307. Payment of Interest; Interest Rights Preserved.................28
SECTION 308. Persons Deemed Owners..........................................29
SECTION 309. Cancellation...................................................29
SECTION 310. Computation of Interest........................................30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........................30
SECTION 402. Application of Trust Money.....................................31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default..............................................32
SECTION 502. Acceleration of Maturity; Recission and Annulment..............33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee........................................................34
SECTION 504. Trustee May File Proofs of Claim...............................35
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons........................................................35
SECTION 506. Application of Money Collected.................................36
SECTION 507. Limitation on Suits............................................37
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest...................................................37
SECTION 509. Restoration of Rights and Remedies.............................38
SECTION 510. Rights and Remedies Cumulative.................................38
SECTION 511. Delay or Omission Not Waiver...................................38
SECTION 512. Control by Holders of Securities...............................38
SECTION 513. Waiver of Past Defaults........................................39
SECTION 514. Undertaking for Costs..........................................39
SECTION 515. Waiver of Stay or Extension Laws...............................39
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities............................40
SECTION 602. Notice of Defaults.............................................41
SECTION 603. Certain Rights of Trustee......................................41
SECTION 604. Not Responsible for Recitals or Issuance of Securities.........42
SECTION 605. May Hold Securities............................................42
SECTION 606. Money Held in Trust............................................42
SECTION 607. Compensation and Reimbursement.................................43
SECTION 608. Disqualification; Conflicting Interests........................43
SECTION 609. Corporate Trustee Required; Eligibility........................44
SECTION 610. Resignation and Removal; Appointment of Successor..............44
SECTION 611. Acceptance of Appointment by Successor.........................46
SECTION 612. Merger, Conversion, Consolidation or Succession to Business....47
SECTION 613. Preferential Collection of Claims Against Company..............47
SECTION 614. Appointment of Authenticating Agent............................47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders......49
SECTION 702. Preservation of Information; Communications to Holders.........49
SECTION 703. Reports by Trustee.............................................50
SECTION 704. Reports by Company.............................................51
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...........51
SECTION 802. Successor Corporation Substituted..............................52
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.............52
SECTION 902. Supplemental Indentures With Consent of Holders................53
SECTION 903. Execution of Supplemental Indentures...........................54
SECTION 904. Effect of Supplemental Indentures..............................55
SECTION 905. Conformity with Trust Indenture Act............................55
SECTION 906. Reference in Securities to Supplemental Indentures.............55
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest....................55
SECTION 1002. Maintenance of Office or Agency...............................55
SECTION 1003. Money for Securities Payments to Be Held in Trust.............57
SECTION 1004. Additional Amounts............................................58
SECTION 1005. Reserved......................................................59
SECTION 1006. Waiver of Certain Covenants...................................59
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article......................................59
SECTION 1102. Election to Redeem; Notice to Trustee.........................59
SECTION 1103. Selection of Securities to Be Redeemed........................60
SECTION 1104. Notice of Redemption..........................................60
SECTION 1105. Deposit of Redemption Price...................................61
SECTION 1106. Securities Payable on Redemption Date.........................61
SECTION 1107. Securities Redeemed in Part...................................62
ARTICLE TWELVE
SINKING FUND
SECTION 1201. Applicability of Article......................................62
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.........63
SECTION 1203. Redemption of Securities for Sinking Fund.....................63
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance..63
SECTION 1302. Defeasance and Discharge......................................63
SECTION 1303. Covenant Defeasance...........................................64
SECTION 1304. Conditions to Defeasance or Covenant Defeasance...............64
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.........................66
SECTION 1306. Reinstatement.................................................66
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Securities Subordinated to Senior Indebtedness................67
SECTION 1402. No Payment on Securities in Certain Circumstances.............67
SECTION 1403. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization....68
SECTION 1404. Subrogation to Rights of Holders of Senior Indebtedness.......69
SECTION 1405. Obligations of the Company Unconditional......................70
SECTION 1406. Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice.....................................................70
SECTION 1407. Application by Trustee of Amounts Deposited with It...........70
SECTION 1408. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.....................71
SECTION 1409. Trustee to Effectuate Subordination of Securities.............71
SECTION 1410. Right of Trustee to Hold Senior Indebtedness..................72
SECTION 1411. Article Fourteen Not to Prevent Events of Default.............72
SECTION 1412. No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness..................................................72
SECTION 1413. Article Applicable to Paying Agent............................72
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May be Called.....................72
SECTION 1502. Call, Notice and Place of Meetings............................73
SECTION 1503. Persons Entitled to Vote at Meetings..........................73
SECTION 1504. Quorum; Action................................................73
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings......................................................74
SECTION 1506. Counting Votes and Recording Action of Meetings...............75
INDENTURE, dated as of ___________ ___, ____, between Lone Star Technologies,
Inc., a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), and ________________, a
__________________, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured subordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" or "GAAP" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America at the date of such
computation; 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 Articles Six, Ten and Thirteen, are
defined in those Articles.
"Act" when used with respect to any Holder of a Security 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 by the Trustee pursuant to
Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer, including, without limitation, a
Security in temporary or permanent global bearer form.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 204, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee. Book-Entry Securities shall not be deemed to be
securities in global form for purposes of Sections 201 and 203 and Article
Three of this Indenture.
"Business Day," when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close, except as may
otherwise be provided with respect to Securities of any given series.
"Capital Stock" means, with respect to any corporation, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Capitalized Lease Obligation" of any Person means any obligation of such
Person to pay rent or other amounts under a lease of property, real or
personal, that is required to be capitalized for financial reporting purposes
in accordance with GAAP; and the amount of such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
"Certification Date" means with respect to Securities of any series (i) if
Bearer Securities of such series are not to be initially represented by a
temporary global Security, the date of delivery of the definitive Bearer
Security and (ii) if Bearer Securities of such series are initially
represented by a temporary global Security, the earlier of (A) the Exchange
Date with respect to Securities of such series and (B) if the first Interest
Payment Date with respect to Securities of such series is prior to such
Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its President or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in New
York, New York, at which at any particular time its corporate trust business
shall be administered.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series issuable or
issued in whole or in part in the form of one or more Book-Entry Securities,
the clearing agency registered under the Securities Exchange Act of 1934, as
amended, specified for that purpose as contemplated by Section 301.
"Designated Senior Indebtedness," unless otherwise provided with respect to
the Securities of a series as contemplated by Section 301, means any Senior
Indebtedness that (i) in the instrument evidencing the same or the assumption
or guarantee thereof (or related documents to which the Company is a party)
is expressly designated as "Designated Senior Indebtedness" for purposes of
this Indenture and (ii) satisfies such other conditions as may be provided
with respect to the Securities of such series; provided that such instruments
or documents may place limitations and conditions on the right of such Senior
Indebtedness to exercise the rights of Designated Senior Indebtedness.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Holder," when used with respect to any Security, means in the case of a
Registered Security the Person in whose name the Security is registered in
the Security Register and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"Indebtedness" of any Person means, without duplication, (i) all indebtedness
of such Person for borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a portion thereof),
(ii) all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments, (iii) all obligations of such Person in respect of
letters of credit or other similar instruments (or reimbursement obligations
with respect thereto), other than standby letters of credit, performance
bonds and other obligations issued by or for the account of such Person in
the ordinary course of business, to the extent not drawn or, to the extent
drawn, if such drawing is reimbursed not later than the third Business Day
following demand for reimbursement, (iv) all obligations of such Person to
pay the deferred and unpaid purchase price of property or services, except
trade payables and accrued expenses incurred in the ordinary course of
business, (v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness of others secured by a lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person (provided that if the
obligations so secured have not been assumed in full by such Person or are
not otherwise such Person's legal liability in full, then such obligations
shall be deemed to be in an amount equal to the greater of (a) the lesser of
(1) the full amount of such obligations and (2) the fair market value of such
assets, as determined in good faith by the Board of Directors of such Person,
which determination shall be evidenced by a Board Resolution, and (b) the
amount of obligations as have been assumed by such Person or which are
otherwise such Person's legal liability), and (vii) all Indebtedness of
others (other than endorsements in the ordinary course of business)
guaranteed by such Person to the extent of such guarantee.
"Indenture" means this instrument as originally executed or 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 particular series of Securities established as
contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity" when used with respect to any Security means the date on which the
principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate complying with the provisions of
Section 102 signed by the Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in a foreign currency or currencies, including composite
currencies, shall be the U.S. dollar equivalent, determined on the date of
original issuance of such Security in the manner provided as contemplated by
Section 301, of the principal amount (or, in the case of an Original Issue
Discount Security, the United States dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in
(i) above) of such Security, and (iii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, or upon any such determination as to the presence of a quorum, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Payment Default" has the meaning specified in Section 1402(a).
"Payment Notice" has the meaning specified in Section 1402(b).
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places as specified in accordance with Section 301 where,
subject to the provisions of Section 1002, the principal of and any premium
and interest on the Securities of that series are payable.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301, or, if not so specified, the last day
of the calendar month preceding such Interest Payment Date if such Interest
Payment Date is the 15th day of the calendar month or the 15th day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer corporate trust matters.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" of the Company, unless otherwise provided with respect
to the Securities of a series as contemplated by Section 301, means (i) all
Indebtedness of the Company, whether currently outstanding or hereafter
issued, unless, by the terms of the instrument creating or evidencing such
Indebtedness, it is provided that such Indebtedness is not superior in right
of payment to the Securities or to other Indebtedness which is pari passu
with or subordinated to the Securities, and (ii) any modifications,
refunding, deferrals, renewals or extensions of any such Indebtedness or
securities, notes or other evidences of Indebtedness issued in exchange for
such Indebtedness; provided that in no event shall "Senior Indebtedness"
include (a) Indebtedness of the Company owed or owing to any Subsidiary of
the Company or any officer, director or employee of the Company or any
Subsidiary of the Company, (b) Indebtedness to trade creditors or (c) any
liability for taxes owed or owing by the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee
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 or a coupon representing such installment of interest as the fixed
date on which the principal of such Security or such installment of principal
or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force at the date as of which
this Indenture was executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee"
as used with respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"United States" means the United States of America (including the States and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal income
tax purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual
or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President," when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such Counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than certificates provided
pursuant to Section 704) shall include:
(1) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, 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, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the 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, or in the exercise of reasonable care should know, 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. If Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act"
of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy or of the holding by any Person of a
Security shall be sufficient for any purpose of this Indenture and (subject
to Section 601) conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to
take acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities held by
any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is deemed by
the Trustee to be satisfactory. The Trustee and the Company may assume that
such ownership of any Bearer Security continues until (1) another certificate
or affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (2) such Bearer Security is produced to the Trustee
by some other Person, or (3) such Bearer Security is surrendered in exchange
for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may also be proved in
any other manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
(f) With respect to the Securities of any series, upon receipt by the Trustee
of (i) any written notice directing the time, method or place of conducting
any proceeding or exercising any trust or power pursuant to Section 512 with
respect to Securities of such series or (ii) any written demand, request or
notice with respect to any matter on which the Holders of Securities of such
series are entitled to act under this Indenture, in each case from Holders of
less than, or proxies representing less than, the requisite principal amount
of Outstanding Securities of such series entitled to give such demand,
request or notice, the Trustee shall establish a record date for determining
Holders of Outstanding Securities of such series entitled to join in such
demand, request or notice, which record date shall be the close of business
on the day the Trustee receives such demand, request or notice. The Holders
on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to join in such demand, request or notice whether or not
such Holders remain Holders after such record date; provided, however, that
unless the Holders of the requisite principal amount of Outstanding
Securities of such series shall have joined in such demand, request or notice
prior to the day which is the 90th day after such record date, such demand,
request or notice shall automatically and without further action by any
Holder be cancelled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, (i) after the
expiration of such 90-day period, a new demand, request or notice identical
to a demand, request or notice which has been cancelled pursuant to the
proviso to the preceding sentence or (ii) during any 90-day period, a new
demand, request or notice contrary to or different from such demand, request
or notice, in either of which events a new record date shall be established
pursuant to the provisions of this Subsection (f).
(g) The Company may, but shall not be obligated to, direct the Trustee to
establish a record date specified by the Company for the purpose of
determining the Persons entitled to (i) waive any past default with respect
to the Securities of such series in accordance with Section 513 of this
Indenture, (ii) consent to any supplemental indenture in accordance with
Section 902 of this Indenture, (iii) waive any term, condition or provision
of any covenant in accordance with Section 1006 of this Indenture or (iv)
take any other action hereunder. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any such past default, consent to any such
supplemental indenture or waive any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 90th day after such
record date, any such waiver or consent previously given shall automatically
and without further action by any Holder be cancelled and of no further
effect.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act
of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every
purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to the Company addressed to it at
___________________, to the attention of Secretary, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture provides
for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at the address of
such Holder as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer Securities
if published in an Authorized Newspaper in The City of New York and in such
other city or cities as may be specified in such Securities on a Business Day
at least twice, the first such publication to be not earlier than the
earliest date, and not later than the latest date, prescribed for the giving
of such notice.
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 of
Registered Securities by mail, then such notification as shall be made with
the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice with respect
to other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein.
In case by the reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
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 of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any provision of
the Trust Indenture Act or any provision included in this Indenture by any of
the provisions of the Trust Indenture Act, such provision of the Trust
Indenture Act or included provision 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 case any provision of this Indenture or in the Securities or coupons 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 Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the Holders of Securities and coupons and the holders
of any Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities or coupon other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal (and premium, if any) need not be
made on such date, but may be made on the next succeeding Business Day at such
Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case
may be.
SECTION 114. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the
country of publication.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer Securities,
if any, of each series and related coupon shall be in substantially the form
(including temporary or permanent global form) as shall
be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange as may,
consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons. If temporary Securities of any series are issued in global form as
permitted by Section 304, the form thereof shall be established as provided
in the preceding sentence. A copy of the Board Resolution and any action
taken pursuant thereto establishing the forms of Securities or coupons of any
series (or any such temporary global Security) shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities (or any
such temporary global Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities shall
be issuable in registered form without coupons. Unless otherwise specified as
contemplated by Section 301, Securities in bearer form shall have interest
coupons attached.
The definitive Securities and coupons, if any, shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
, as Trustee
---------------------------------
By Authorized Officer."
-------------------------------
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities represented thereby may be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal
amount of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
SECTION 204. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in or pursuant to the Indenture,
and no transfer of this Security (other than a transfer of this Security as a
whole by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in such limited circumstances."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such series
shall rank equally and pari passu with each other series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an
Officers' Certificate or Company Order, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities or both, whether any Securities of the series
are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in any
such permanent global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than in the
manner provided in Section 305;
(4) the person to whom any interest on any Registered Security of the series
shall be payable, if other
than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the regular Record Date
for such interest, the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment Date
will be paid if other than in the manner provided in Section 304;
(5) the date or dates on which the principal of the Securities of the series
is payable;
(6) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate shall be determined, the
date or dates from which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable, the Regular Record Date
for any interest payable on any Registered Securities on any Interest Payment
Date (if other than as set forth herein) and whether and under what
circumstances additional amounts with respect to such Securities shall be
payable as set forth in Section 1004;
(7) the place or places where, subject to the provisions of Section 1002, the
principal of and any premium and interest on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the right, if any, of the Company to redeem Securities, in whole or in
part, at its option and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be so redeemed;
(9) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund
or analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(10) the denominations in which any Registered Securities of the series shall
be issuable, if other than denominations of $1,000 and any integral multiple
thereof, and the denomination or denominations in which any Bearer Securities
of the series shall be issuable, if other than the denomination of $5,000;
(11) the currency or currencies, including composite currencies, in which
payment of the principal of and any premium and interest on any Securities of
the series shall be payable if other than the currency of the United States
of America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(12) if the amount of payments of principal of and any premium or interest on
any Securities of the series may be determined with reference to an index,
the manner in which such amounts shall be determined;
(13) if other than the principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal of and any premium or interest on the Securities of the
series are to be payable, at the election of the Company or a Holder thereof,
in a currency or currencies, including composite currencies, other than that
or those in which the Securities are stated to be payable, the currency or
currencies in which payment of the principal of and any premium and interest
on Securities of such series as to which
such election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(15) whether the Securities of the series shall be issued upon original
issuance in whole or in part in the form of one or more Book-Entry Securities
and, in such case, (a) the Depository with respect to such Book-Entry
Security or Securities; and (b) the circumstances under which any such
Book-Entry Security may be exchanged for Securities registered in the name
of, and any transfer of such Book-Entry Security may be registered to, a
Person other than such Depository or its nominee, if other than as set forth
in Section 305;
(16) whether either or both of the provisions of Section 1302 or 1303 are
applicable to the Securities of such series, any additional means of
satisfaction and discharge pursuant to Section 1302 or 1303 and any
additional conditions to the provisions of Section 1302 or 1303;
(17) any other Events of Default or covenants with respect to the Securities
of such series, or any deletions or modifications to the Events of Default or
covenants set forth herein with respect to the Securities of such series;
(18) any modifications to, or qualifications contemplated by, the definition
of "Designated Senior Indebtedness," any modifications to the definition of
"Senior Indebtedness" or any modifications to Article Fourteen or the other
provisions regarding subordination with respect to the Securities of such
series; and
(19) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to above and
(subject to Section 303) set forth, or determined in the manner provided, in
the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Fourteen.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, any Registered Securities of a series shall be issuable
in denominations of $1,000 and any integral multiple thereof and any Bearer
Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Coupons shall bear the
facsimile signature of the Treasurer or any Assistant Treasurer of the
Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however,
that, unless otherwise provided with respect to a series, in connection with
its original issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that
unless otherwise provided with respect to a series, a Bearer Security may be
delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate
in the form set forth in Exhibit A to this Indenture, dated no earlier than
the Certification Date, or such other form of certification as shall contain
such information as may then be required by U.S. federal income tax law or as
shall be otherwise provided with respect to a series. If any Security shall
be represented by a permanent global Bearer Security, then, for purposes of
this Section and Section 304, the notation of a beneficial owner's interest
therein upon original issuance of such Security or upon exchange of a portion
of a temporary global Security shall be deemed to be delivered in connection
with its original issuance of such beneficial owner's interest in such
permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
In authenticating Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion
of Counsel stating:
(a) that the forms of such Securities and coupons established by or pursuant
to Board Resolution as contemplated by Section 201 have been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities and any coupons have been established by
or pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, together with any coupons appertaining thereto,
when authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
Such Opinion of Counsel shall also cover such other matters as the Trustee
may reasonably request.
The Trustee shall not be required to authenticate such Securities the forms
or terms of which have been established by or pursuant to a Board Resolution
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to such preceding paragraphs at or
prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon issuance of the first Security of such series to be
issued and such documents reasonably contemplate subsequent such issuances.
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Registered Security shall be dated the date of its authentication; and
each Bearer Security shall be dated as of the date of original issuance of
the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 309 together with a
written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities. In the
case of any series issuable as Bearer Securities, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
1002 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
(accompanied by any unmatured coupons appertaining thereto) the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like aggregate principal amount of definitive Securities of the same series
and of like tenor of authorized denominations; provided, however, that no
definitive Bearer Security shall be issued in exchange for a temporary
Registered Security, and, provided, further, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only
in compliance with the conditions set forth in Section 303.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euro-clear and CEDEL
S.A., for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified
in, or determined pursuant to the terms of, any such temporary global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Security, executed by
the Company. On or after the Exchange Date such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities of that series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor
as the portion of such temporary global Security to be exchanged; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global
Security shall be accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euro-clear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL S.A. as to
the portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B to this Indenture, or such
other form of certification as shall contain such information as may then be
required by U.S. federal income tax law or as shall be otherwise provided
with respect to a series. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section
301, and if any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that no definitive Bearer
Security or permanent global Security shall be delivered in exchange for a
temporary Bearer Security except in compliance with the conditions set forth
in Section 303.
Unless otherwise specified in the temporary global Security, the interest of
a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged on the Exchange Date for definitive Securities (and where
the form of the definitive Securities is not specified by the Holder for an
interest in a permanent global Security) of the same series and like tenor
unless, on or prior to the Exchange Date, such beneficial owner has not
delivered to Euro-clear or CEDEL, S.A., as the case may be, a certificate in
the form set forth in Exhibit A to this Indenture, or such other form of
certification as shall contain such information as may then be required by
U.S. federal income tax law or as shall be otherwise provided with respect to
a series, dated no earlier than the Certification Date, copies of which
certificate shall be available from the offices of Euro-clear and CEDEL S.A.,
the Trustee, any Authenticating Agent appointed for such series of Securities
and each Paying Agent, and after the Exchange Date, the interest of a
beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities (and where the form of the
definitive Securities is not specified by the Holder for an interest in a
permanent global Security) of the same series and of like tenor following
such beneficial owner's delivery to Euro-clear or CEDEL S.A., as the case may
be, of a certificate in the form set forth in Exhibit A to this Indenture, or
such other form of certification as shall contain such information as may
then be required by U.S. federal income tax law or as shall be otherwise
provided with respect to a series, dated no earlier than the Certification
Date. Unless otherwise specified in such temporary global Security, any
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL S.A. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring before the applicable Exchange Date shall be payable to Euro-clear
and CEDEL S.A. on such Interest Payment Date upon delivery by Euro-clear and
CEDEL S.A. to the Trustee of a certificate or certificates in the form set
forth in Exhibit B to this Indenture or such other form of certification as
shall contain such information as may then be required by U.S. federal income
tax law or as shall be otherwise provided with respect to a series for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in
the form set forth in Exhibit A to this Indenture; and except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on an Interest Payment Date for Securities of such
series occurring on or after the applicable Exchange Date shall be payable to
Euro-clear and CEDEL S.A. on such Interest Payment Date but shall not be
credited by Euro-clear or CEDEL S.A. to the account of any Person who is a
beneficial owner of such temporary global Security on such Interest Payment
Date until such Person shall exchange his interest in such temporary global
Security in full as hereinabove provided. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned
to the Trustee immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in accordance with
Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be maintained by
the Company in accordance with Section 1002 a register (being the combined
register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of each series of Registered
Securities and the registration of transfers of such Registered Securities.
The Trustee is hereby appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security of any
series at the office or agency of the Company maintained pursuant to Section
1002 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. Unless otherwise
provided with respect to any series of Securities, Bearer Securities may not
be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured
coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified pursuant to
Section 301, any permanent global Security shall be exchangeable only as
provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section
301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in an aggregate
principal amount equal to the principal amount of such permanent global
Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent global Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing but
need not comply with Section 102 or be accompanied by an Opinion of Counsel)
by the Common Depositary or such other depositary or Common Depositary as
shall be specified in the Company Order with respect thereto to the Trustee,
as the Company's agent for such purpose, to be exchanged, in whole or in
part, for definitive Securities of the same series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, a like aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor
as the portion of such permanent global Security to be exchanged which,
unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of that series is to be redeemed and ending on the
relevant Redemption Date; and provided, further, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such permanent global Security shall be
returned by the Trustee to the Common Depositary or such other depositary or
Common Depositary referred to above in accordance with the instructions of
the Company referred to above. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record
Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, then interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of such
Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is
payable in accordance with provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or
any transfer agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent 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 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 Securities, other than
exchanges pursuant Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption, or if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption, in whole or in
part, except the unredeemed portion of any Security being redeemed in part,
or (iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified pursuant to
Section 301, any Book-Entry Security shall be exchangeable pursuant to this
Section 305 or Sections 304, 906 and 1107 for Securities registered in the
name of, and a transfer of a Book-Entry Security of any series may be
registered to, any Person other than the Depository for such Security or its
nominee only if (i) such Depository notifies the Company that it is unwilling
or unable to continue as Depository for such Book-Entry Security or if at any
time such Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company executes and
delivers to the Trustee a Company Order that such Book-Entry Security shall
be so exchangeable and the transfer thereof so registrable or (iii) there
shall have occurred and be continuing an Event of Default, or an event which
after notice of lapse of time would be an Event of Default, with respect to
the Securities of such series. Upon the occurrence in respect of any
Book-Entry Security of any series of any one or more of the conditions
specified in clauses (i), (ii) or (iii) of the preceding sentence or such
other conditions as may be specified, such Book-Entry Security may be
exchanged for Securities registered in the names of, and the transfer of such
Book-Entry Security may be registered to, such Persons (including Persons
other than the Depository with respect to such series and its nominees) as
such Depository shall direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall
also be a Book-Entry Security and shall bear the legend specified in Section
204 except for any Security authenticated and delivered in exchange for, or
upon registration of transfer of, a Book-Entry Security pursuant to the
preceding sentence.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon appertaining
thereto is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons,
if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon;
provided, however, that the principal of and any premium and interest on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant to
this Section in lieu of any destroyed, lost or stolen Security or in exchange
for a Security to which a destroyed, lost or stolen coupon appertains, shall
constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if
any, or the destroyed, lost or stolen coupons shall be at any time
enforceable by anyone, and any such new Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series and their coupons, if any,
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to any
series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Registered Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of such
series at the address of such Holder as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Registered
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be then
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Security for the purpose of receiving payment
of principal of (and premium, if any) and (subject to Sections 305 and 307)
interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry Security, nothing
herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished
by a Depository or impair, as between a Depository and holders of beneficial
interests in any Book-Entry Security, the operation of customary practices
governing the exercise of the rights of the Depository (or its nominee) as
Holder of such Book-Entry Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Registered Securities and matured coupons so delivered shall be
cancelled by the Trustee. All Bearer Securities (which have not been called
for redemption) and unmatured coupons so delivered shall be held by the
Trustee and, upon instruction by a Company Order, shall be cancelled or held
for reissuance. Bearer Securities (which have not been called for redemption)
and unmatured coupons held for reissuance may be reissued only in replacement
of mutilated, lost, stolen or destroyed Bearer Securities of the same series
and like tenor or the related coupons pursuant to Section 306. All Bearer
Securities and unmatured coupons held by the Trustee pending such
cancellation or reissuance shall be deemed to be delivered for cancellation
for all purposes of this Indenture and the Securities. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities and coupons held by the
Trustee shall be disposed in accordance with its customary practices.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive additional
amounts, as provided in Section 1004), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and all coupons,
if any, appertaining thereto (other than (i) coupons appertaining to Bearer
Securities surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been waived as
provided in Xxxxxxx 000, (xx) Securities and coupons which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Xxxxxxx 000, (xxx) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and coupons for whose
payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below, any coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company; and the Company, in
the case of (i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount sufficient
to pay and discharge the entire indebtedness on such Securities and coupons
not theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and any interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 and, if money
shall have been deposited with the Trustee pursuant to clause (1)(B) of this
Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee. Money held in trust is not subject to Article Fourteen.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," whenever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of
Article Fourteen or be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order, rule or regulation of
any administrative or governmental body), unless it is either inapplicable to
a particular series of Securities or it is specifically deleted or modified
in or pursuant to the terms of such series or in the form of Security for
such series:
(1) default in the payment of any interest upon any 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
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction of (A) a decree or order for
relief against the Company in an involuntary case or proceeding under any
Bankruptcy Law (as defined below) or (B) a decree or order appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property
under any Bankruptcy Law, or ordering the liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding under
any applicable Bankruptcy Law or the consent by the Company to the entry of a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Bankruptcy Law or to the commencement of
any such case or proceeding against it, or the filing by the Company of a
petition or answer or consent seeking reorganization or relief under any
applicable Bankruptcy Law, or the consent by the Company to the filing of
such petition or the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the taking of corporate
action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that
series.
For purposes of this Section 501, "Bankruptcy Law" means Xxxxx 00, Xxxxxx
Xxxxxx Code, or any similar federal or state law for the relief of debtors.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of, or premium, if any, or any interest on, any Security is payable
in a currency or currencies (including a composite currency) other than
Dollars and such currency (or currencies) is (or are) not available to the
Company for making payment thereof due to the imposition of exchange controls
or other circumstances beyond the control of the Company, the Company will be
entitled to satisfy its obligations to Holders of the Securities by making
such payment in Dollars in an amount equal to the Dollar equivalent of the
amount payable in such other currency, as determined by the Trustee by
reference to the noon buying rate in The City of New York for cable transfers
for such currency ("Exchange Rate"), as such Exchange Rate is reported or
otherwise made available by the Federal Reserve Bank of New York on the date
of such payment, or, if such rate is not then available, on the basis of the
most recently available Exchange Rate. Notwithstanding the foregoing
provisions of this Section 501, any payment made under such circumstances in
Dollars where the required payment is in a currency other than Dollars will
not constitute an Event of Default under this Indenture.
SECTION 502. Acceleration of Maturity; Recission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and
any interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such recission 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 on any Security when such
interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of (or premium, if any,
on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
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, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 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 relative to the Company or any obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand 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 and any
premium and interest owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders of Securities and coupons allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
of Securities and coupons to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly
to the Holders of Securities and coupons, to pay to the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Fourteen, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the
Securities or coupons, or both as the case may be, 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 the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities and coupons in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal and any premium and
interest, respectively.
In any case in which Securities are Outstanding that are denominated in more
than one currency and the Trustee is directed to make ratable payments under
this Section to Holders of such Securities, the Trustee shall calculate the
amount of such payments as follows: (i) as of the day the Trustee collects an
amount under this Article, the Trustee shall, as to each Holder of a Security
to whom an amount is due and payable under this Section that is denominated
in a foreign currency, determine that amount in Dollars that would be
obtained for the amount owing such Holder, using the rate of exchange at
which in accordance with normal banking procedures the Trustee could purchase
in The City of New York Dollars with such amount owing; (ii) calculate the
sum of all Dollar amounts determined under (i) and add thereto any amounts
due and payable in Dollars; and (iii) using the individual amounts determined
in (i) or any individual amounts due and payable in Dollars, as the case may
be, as a numerator and the sum calculated in (ii) as a denominator, calculate
as to each Holder of a Security to whom an amount is owed under this Section
the fraction of the amount collected under this Article payable to such
Holder. Any expenses incurred by the Trustee in actually converting amounts
owing Holders of Securities denominated in a currency other than that in
which any amount is collected under this Article shall be likewise (in
accordance with this paragraph) borne ratably by all Holders of Securities to
whom amounts are payable under this Section.
To the fullest extent allowed under applicable law, if for the purpose of
obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day
next preceding that on which final judgment is given. Neither the Company nor
the Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment
Currency into the
Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have any
right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series; it being understood and
intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional,
to receive payment of the principal of and any premium and (subject to
Sections 305 and 307) any interest on such Security or payment of such coupon
on the Stated Maturity or Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders of Securities and coupons shall be restored severally
and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or
remedy accruing upon any Event of Default 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 the
Trustee or to the Holders of Securities or coupons may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction, and
(3) the Trustee shall not be obligated to take any action unduly prejudicial
to Holders not joining in such direction or involving the Trustee in personal
liability.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all the Securities of such
series and any related coupons waive any past default hereunder with respect
to the Securities of such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder of any Security or coupon
for the enforcement of the payment of the principal of or any premium or
interest on any Security or the payment of any coupon on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case
of redemption, on or after the Redemption Date).
SECTION 515. 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 to
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, 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,
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture,
and use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of Subsection
(a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities
of any series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability or of affording
protection to the Trustee shall be subject to the provisions of this Section.
The foregoing provisions of this Section 601 and Section 603 are in
furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to
the Securities of any series, the Trustee shall transmit in the manner and to
the extent provided in Section 703(c), notice of such default hereunder known
to the 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 any premium or interest on any Security of such series or
in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and
so long as the Board of Directors, the executive committee or a trust
committee of directors or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of Securities of such series, and provided, further, that in the case
of any default of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Subject to the provision of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note or
other paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as otherwise
expressly provided herein and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of
the Holders of Securities of any series or any related coupons pursuant to
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order,
bond, debenture, note or paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee 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
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify and defend the Trustee for, and to hold it harmless against,
any loss, liability or expense, except to the extent any such loss, liability
or expense may be attributable to its negligence or bad faith, arising out of
or in connection with the acceptance or administration of the trust or trusts
hereunder or the performance of its duties hereunder, 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 shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any,
or interest on a particular Securities.
The "Trustee" as used in this Section 607 shall include any predecessor
Trustee, but the negligence or bad faith of any Trustee shall not affect the
rights of any other Trustee hereunder.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as defined
in this Section, with respect to the Securities of any series, then, within
90 days after ascertaining that it has such conflicting interest and if the
default, as defined in this Section, to which such conflicting interest
relates has not been cured or duly waived or otherwise eliminated before the
end of such 90-day period, it shall either eliminate such conflicting
interest or, except as otherwise provided in Subsection (d) of this Section,
resign with respect to the Securities of that series in the manner and with
the effect specified in Section 310(b) of the Trust Indenture Act.
(b) In the event that the Trustee shall fail to comply with the provisions of
Subsection (a) of this Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration of such 90-day period,
transmit in the manner and to the extent provided in Section 703(c), by mail
to all Holders of Securities of that series, as their names and addresses
appear in the Security Register, notice of such failure, except as provided
in Section 310(b) of the Trust Indenture Act.
(c) For the purposes of this Section, the term "conflicting interest" and
"default" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the Trust
Indenture Act.
(d) Except in the event of a default that is a default in the payment of the
principal of or interest on any Security of any series, or a default in the
deposit of any sinking fund or purchase fund payment with respect to the
Securities of any series, the Trustee shall not be required to resign as
provided by this Section if the Trustee shall have sustained the burden of
proving, on application to the Commission and after opportunity for hearing
thereon, that
(i) the default with respect to the Securities of any series may be cured or
waived during a reasonable period and under the procedures described in such
application, and
(ii) a stay of the Trustee's duty to resign will not be inconsistent with the
interests of Holders of Securities.
The filing of such an application shall automatically stay the performance of
the Trustee's duty to resign until the Commission orders otherwise.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a corporation
organized and doing business under the laws of the United States of America,
any State thereof or the District of Columbia, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
Federal or State authority and having an office or agency in the Borough of
Manhattan, The City of New York, or a corporation or other Person permitted
to act as Trustee by the Commission. The Trustee shall have a combined
capital and surplus of at least $50,000,000. If such corporation or other
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. No obligor upon any Securities issued
under this Indenture or person directly or
indirectly controlling, controlled by or under common control with such
obligor shall serve as Trustee under this Indenture.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee 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 may resign at any time with respect to the Securities of one
or more 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 within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after written
request therefor by the Company or by any Holder of a Security who has been a
bona fide Holder of a Security for at least six months, or
(2) the 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) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all Securities, or (ii)
subject to Section 514, any Holder of a Security who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of the Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee 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 Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon
its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities of such series and accepted appointment in the manner
required by Section 611, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series. Such court may thereupon, after such
notice, if any, as it may deem proper, appoint a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee, with like
effect as if originally named Trustee hereunder; but on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereof
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (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 as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship described in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may, by an instrument in writing, appoint an Authenticating Agent
or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue or upon exchange, registration of transfer
or partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefit of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, or in the case of any Authenticating Agent with respect
to Securities issuable as Bearer Securities, under the laws of any country in
which such Bearer Securities may be offered, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not
less than $50,000,000 or equivalent amount expressed in a foreign currency
and subject to supervision or examination by Federal or State authority or
authority of such country. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall
be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may, and if it shall cease to be eligible shall,
resign at any time by giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Registered Securities, if any, of the series with respect to
which such Authenticating Agent will serve, as their names and addresses
appear in the Security Register. 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 agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payment subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have been endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
, as Trustee
------------------------------
By
As Authenticating Agent
------------------------------
By
Authorized Officer
------------------------------
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or cause
to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record Date
relating to such series (or, if there is no Regular Record Date relating to
such series, on January 15 and July 15) all information in the possession or
control of the Company or any of its Paying Agents other than the Trustee, in
such form as the Trustee may reasonably require, of the names and addresses
of the Holders as of such Regular Record Date (or such other date), and
(b) at such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished; excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series (i) contained
in the most recent list furnished to the Trustee as provided in Section 701,
(ii) received by the Trustee in its capacity as Security Registrar or Paying
Agent or (iii) filed with it during the two preceding years pursuant to
Section 703(c)(2). The Trustee may destroy
any list furnished to it as provided in Section 701 upon receipt of a new
list so furnished with respect to such series, and may destroy not earlier
than two years after filing any information filed with it pursuant to Section
703(c)(2).
(b) Holders of Securities may communicate pursuant to Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under
this Indenture or under the Securities.
(c) Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after September 30 of each year commencing with the year
1991, the Trustee shall, if required by Section 313(a) of the Trust Indenture
Act, transmit to Holders a brief report dated as of such September 30 that
complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and addresses of
such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two years
preceding such transmission, filed their names and addresses with the Trustee
for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this Section,
to each Holder of a Security whose name and address is preserved at the time
by the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 and otherwise comply with Sections 314(a)(1)-(3) of the Trust
Indenture Act; and
(2) furnish to the Trustee on the 31st day of January of each year a Security
is Outstanding, a brief certificate of the Company's principal executive
officer, principal financial officer or principal accounting officer as to
his or her knowledge of the Company's compliance with all conditions and
covenants under the Indenture. For purposes of this paragraph, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under the Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to
any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey or transfer its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person
or convey or transfer its properties and assets substantially as an entirety
to any Person, the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Company substantially as an entirety shall be a
corporation, partnership or trust organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and 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 Securities and the performance 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, no Event of Default,
and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance
or transfer 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 with or merger or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person 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 Person 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 Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities pursuant to Article Eight; or
(2) to add to the covenants of the Company for the benefit of the Holders of
all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or any series
of Securities (and if such Events of Default are to be for the benefit of
less than all series of Securities, stating that such Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued
in exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form,
provided that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this Indenture, provided
that if any such change or elimination shall adversely affect the interest of
Holders of Securities of any series or any coupons appertaining thereto in
any material respect, such change or elimination shall become effective with
respect to such series only when there is no Security of such series
Outstanding; or
(6) to provide any security for any series of Securities or to add guarantees
of any series of Securities; or
(7) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, to correct or supplement any provision herein or
in any supplemental indenture which may be defective or inconsistent with any
other provision herein or in any supplemental indenture, or to make any other
provisions with respect to matters or questions arising under this Indenture;
provided, that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of the
Outstanding Securities of all affected by such supplemental indenture, by Act
of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee 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
Securities of such series and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the redemption date thereof, or change any
obligation of the
Company to pay additional amounts pursuant to Section 1004 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or change the coin or currency in which any Security
or any premium or interest thereon is payable, or change any right of
redemption, purchase or repayment by the Company at the option of the Holder,
or impair the right to institute suit for the enforcement of any such payment
on or alter the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or modify the provisions of this Indenture with
respect to the subordination of any Security in a manner adverse to the
Holder thereof; or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting; or
(3) change any obligation of the Company to maintain an office or agency in
the places and for the purposes specified in Section 1002; or
(4) modify any of the provisions of this Section, Section 513 or Section 1006
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 Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder of a Security or coupon with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section 1006 or the
deletion of this provision, in accordance with the requirements of Section
611(b) and 901(8).
An amendment under this Section may not make any change that adversely
affects the rights under Article Fourteen of any holder of an issue of Senior
Indebtedness unless the holders of the issue pursuant to its terms consent to
the change.
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 Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities 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 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 may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 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 Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupons appertaining thereto
shall be bound thereby.
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 Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay the principal of and any premium and
interest on the Securities of that series in accordance with the terms of the
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series
of Securities, any interest due on Bearer Securities on or before Maturity
shall be payable only upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as they severally
mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which
is located outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Securities of that
series pursuant to Section 1004); and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee and prompt notices to the Holders as provided
in Section 106 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 Securities or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Securities of that series may be made and notices and demands
may be made or served at the Corporate Trust Office of the Trustee, except
that Bearer Securities of that series and related coupons may be presented
and surrendered for payment (including payment of any additional amounts
payable on Bearer Securities of that series pursuant to Section 1004) at the
offices of any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agents to receive
such respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that,
if the Securities of a series are denominated and payable in Dollars, payment
in principal of and any premium and interest on any Bearer Security
(including any additional amounts payable on Securities of such series
pursuant to Section 1004) shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest or
additional amounts, as the case may be, at all offices or agencies outside
the United States maintained for the purpose by the Company in accordance
with this Indenture is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Company may also from time to time designate one or more other offices or
agencies where Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee and the Holders of any such designation or
rescission and of any other change in the location of any such other office
or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest 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 of its
election or failure to so act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of and any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure to so act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of and any
premium or interest on Securities of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal of and any premium or interest on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect
to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request (unless otherwise required by
mandatory provisions of the applicable escheat or abandoned or unclaimed
property law), or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security or any coupon appertaining thereto
shall (unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law) thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper in each Place of Payment,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of additional amounts,
the Company will pay the Holder of any Security of such series or any coupon
appertaining thereto additional amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of
or any premium or interest on, or in respect of, any Security of any series
or payment of any related coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of additional amounts provided for in this
Section to the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such express mention is
not made.
If the Securities of a series provide for the payment of additional amounts,
at least 10 days prior to the first Interest Payment Date with respect to
that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
any premium or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related coupons who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required to be withheld on such payments to such
Holders of Securities or coupons, the Company will pay to the Trustee or such
Paying Agent the additional amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or, in connection with
actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
SECTION 1005. (Reserved)
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1005 or any covenant added for
the benefit of any series of Securities as contemplated by Section 301
(unless otherwise specified pursuant to Section 301) with respect to the
Securities of any series if before the time for such compliance the Holders
of a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a
Board Resolution. In the case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee in its sole discretion),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of
the Securities of such series to be redeemed. In the case of any redemption
of Securities (i) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which is subject to
a condition specified in
the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or
condition.
SECTION 1103. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all
of the Securities of such series of a specified tenor are to be redeemed) the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series not previously called for redemption, by lot or by such other
method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Registered Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series or of the principal amount of global Securities of such
series. If less than all of the Securities of such series and of a specified
tenor are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Company or
the Trustee, from the Outstanding Securities of such series and specified
tenor not previously called for redemption in accordance with the preceding
sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any 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 Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such 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 to
the Holders of Securities to be redeemed not less than 30 nor more than 60
days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, and interest, if any,
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed, and that on and after the Redemption Date, upon surrender of the
Securities, new Securities of such series in principal amount equal to the
unredeemed part thereof will be issued,
(4) that on the Redemption Date the Redemption Price, and interest, if any,
will become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities, together in the case of Bearer
Securities with all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price,
and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of 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 in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except
to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
1002) and, unless otherwise specified as contemplated by Section 301, only
upon presentation and surrender of coupons for such interest, and provided,
further, that unless otherwise specified as contemplated by Section 301,
installments of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied by
all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished
to them such security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment thereof (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Security without service charge, a new Registered Security or
Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUND
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series only as specified pursuant to
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". Unless otherwise provided by the terms of Securities
of any series, the cash amount of any sinking fund payment shall be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto,
and (2) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to
the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that
such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment
for that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so credited. Not less than 45 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 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 Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
If specified to be applicable with respect to Securities of a series pursuant
to Section 301, the Company
may at its option by Board Resolution, at any time, elect to have either
Section 1302 or Section 1303 applied to the Outstanding Securities of any
series upon compliance with the conditions set forth below in this Article
Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301 applicable
to this Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of any series on the
91st day after the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities of such series and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of the Securities of such
series to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal
of and any premium and interest on the Securities of such series when such
payments are due, (B) the Company's obligations with respect to such
Securities under Section 304, 305, 306, 1002, 1003 and 1004, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including,
without limitation, Section 607 and (D) this Article Thirteen. Subject to
compliance with this Article Thirteen, the Company may exercise its option
under this Section 1302 notwithstanding the prior exercise of its option
under Section 1303.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301 applicable
to this Section, (i) the Company shall be released from its obligations with
respect to the Securities of such series under Section 1005 and Section 801,
and (ii) the occurrence of an event specified in Sections 501(3), (4) or (7)
(unless otherwise specified pursuant to Section 301) shall not be deemed to
be an Event of Default on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"), but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1302
or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section
609 who shall agree to comply with the provisions of this Article Thirteen
applicable to it) as trust funds in trust for the purpose of making the
following payments specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such series, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient, in any
case, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, the principal of (premium, if
any) and each installment of interest on the Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or installment
of interest in accordance with the terms of this Indenture and of the
Securities of such series. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an agency
or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof.
(2) In the case of an election under Section 1302, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holder
of the Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 1303, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of the Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would have been the case
if such deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such deposit or,
insofar as subsections 501(5) and (6) are concerned, at any time during the
period ending on the 121st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause the Trustee to
have a conflicting interest as defined in Section 608 and for purposes of the
Trust Indenture Act with respect to any securities of the Company.
(6) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(7) The Company shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to either the defeasance under Section 1302 or the
covenant defeasance under Section 1303 (as the case may be) have been
complied with.
(8) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company as defined in
the Investment Company Act of 1940, as amended, or such trust shall be
qualified under such Act or exempt from regulation thereunder.
SECTION 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to provisions of the last paragraph of Section 1003, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or such other qualifying trustee -- collectively, for purposes
of this Section 1305, the "Trustee") pursuant to Section 1304 in respect of
the Securities of such series shall be held in trust and applied by the
Trustee, in accordance with provisions of such Securities of such series and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of the Securities of such series, of all sums due
and to become due thereon in respect of principal (and premium, if any) and
interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee 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 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 1302 or 1303 by reason of any legal proceedings or
any order or judgment of any court of governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture with respect to the Securities of such
series and under such Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Thirteen until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 1302 or 1303; provided,
however, that if the Company makes any payment of principal of or any premium
or interest on any Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of the
Securities of such series to receive such payment from the money held by the
Trustee or the Paying Agent.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Securities Subordinated to Senior Indebtedness.
The Company and each Holder of a Security, by his acceptance thereof, agree
that (a) the payment of the principal of, premium (if any) on and interest on
each and all the Securities and (b) any other payment in respect of the
Securities, including on account of the acquisition or redemption of
Securities by the Company, is subordinated, to the extent and in the manner
provided in this Article Fourteen, to the prior payment in full of all Senior
Indebtedness of the Company, whether outstanding at the date of this
Indenture or thereafter created, incurred, assumed or guaranteed, and that
these subordination provisions are for the benefit of the holders of Senior
Indebtedness.
This Article Fourteen shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder
and any one or more of them may enforce such provisions.
SECTION 1402. No Payment on Securities in Certain Circumstances.
(a) No payment shall be made by or on behalf of the Company on account of the
principal of, premium (if any) on or interest on the Securities of any series
or to acquire any of such Securities (including any repurchases of such
Securities pursuant to the provisions thereof at the option of the Holder of
such Securities) for cash or property (other than Junior securities of the
Company), or on account of any redemption provisions of such Securities, in
the event of default in payment of any principal of, premium (if
any) on or interest on any Senior Indebtedness of the Company when the same
becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise (a "Payment
Default"), unless and until such Payment Default has been cured or waived or
otherwise has ceased to exist.
(b) No payment shall be made by or on behalf of the Company on account of the
principal of, premium (if any) on or interest on the Securities of any series
or to acquire any of such Securities (including any repurchases of such
Securities pursuant to the provisions thereof at the option of the Holder of
such Securities) for cash or property (other than Junior securities of the
Company), or on account of the redemption provisions of such Securities, in
the event of any event of default (other than a Payment Default) with respect
to any Designated Senior Indebtedness permitting the holders of such
Designated Senior Indebtedness (or a trustee or other representative on
behalf of the holders thereof) to declare such Designated Senior Indebtedness
due and payable prior to the date on which it would otherwise have become due
and payable, upon written notice thereof to the Company and the Trustee by
any holders of Designated Senior Indebtedness (or a trustee or other
representative on behalf of the holders thereof) (the "Payment Notice"),
unless and until such event of default shall have been cured or waived or
otherwise has ceased to exist; provided, that such payments may not be
prevented pursuant to this Section 1402(b) for more than 179 days after an
applicable Payment Notice has been received by the Trustee unless the
Designated Senior Indebtedness in respect of which such event of default
exists has been declared due and payable in its entirety, in which case no
such payment may be made until such acceleration has been rescinded or
annulled or such Designated Senior Indebtedness has been paid in full. No
event of default that existed or was continuing on the date of any Payment
Notice (whether or not such event of default is on the same issue of
Designated Senior Indebtedness) may be made the basis for the giving of a
second Payment Notice, and only one such Payment Notice may be given in any
365-day period.
(c) In furtherance of the provisions of Section 1401, in the event that,
notwithstanding the foregoing provisions of this Section 1402, any payment or
distribution of assets of the Company (other than Junior securities of the
Company) shall be received by the Trustee or the Holders of Securities of any
series at a time when such payment or distribution was prohibited by the
provisions of this Section 1402, then, unless such payment or distribution is
no longer prohibited by this Section 1402, such payment or distribution
(subject to the provisions of Section 1407) shall be received and held in
trust by the Trustee or such Holder or Paying Agent for the benefit of the
holders of Senior Indebtedness of the Company, and shall be paid or delivered
by the Trustee or such Holders or such Paying Agent, as the case may be, to
the holders of Senior Indebtedness of the Company remaining unpaid or
unprovided for or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing
such Senior Indebtedness of the Company may have been issued, ratably,
according to the aggregate amounts remaining unpaid on account of such Senior
Indebtedness of the Company held or represented by each, for application to
the payment of all Senior Indebtedness in full after giving effect to all
concurrent payments and distributions to or for the holders of such Senior
Indebtedness.
SECTION 1403. Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company or upon any dissolution,
winding up, total or partial liquidation or reorganization of the Company,
whether voluntary or involuntary, in bankruptcy, insolvency, receivership or
similar proceeding or upon assignment for the benefit of creditors:
(a) the holders of all Senior Indebtedness of the Company shall first be
entitled to receive payments in full before the Holders of Securities of any
series are entitled to receive any payment on account of the principal of,
premium (if any) on or interest on such Securities (other than Junior
securities of the Company);
(b) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than Junior
securities of the Company), to which the Holders of Securities of any series
or the Trustee on behalf of such Holders would be entitled, except for the
provisions of this Article Fourteen, shall be paid by the liquidating trustee
or agent or other Person making such a payment or distribution directly to
the holders of such Senior Indebtedness or their representative, ratably
according to the respective amounts of Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
such Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions to the holders of such Senior
Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (other than Junior securities of the Company),
shall be received by the Trustee or the Holders of Securities of any series
or any Paying Agent (or, if the Company or any Affiliate of the Company is
acting as its own Paying Agent, money for any such payment or distribution
shall be segregated or held in trust) on account of the principal of, premium
(if any) on or interest on the Securities of such series before all Senior
Indebtedness of the Company is paid in full, such payment or distribution
(subject to the provisions of Section 1407) shall be received and held in
trust by the Trustee or such Holder or Paying Agent for the benefit of the
holders of such Senior Indebtedness, or their respective representatives,
ratably according to the respective amounts of such Senior Indebtedness held
or represented by each, to the extent necessary to make payment as provided
herein of all such Senior Indebtedness remaining unpaid after giving effect
to all concurrent payments and distributions and all provisions therefor to
or for the holders of such Senior Indebtedness, but only to the extent that
as to any holder of such Senior Indebtedness, as promptly as practical
following notice from the Trustee to the holders of such Senior Indebtedness
that such prohibited payment has been received by the Trustee, Holder(s) or
Paying Agent (or has been segregated as provided above), such holder (or a
representative therefor) notifies the Trustee of the amounts then due and
owing on such Senior Indebtedness, if any, held by such holder and only the
amounts specified in such notices to the Trustee shall be paid to the holders
of such Senior Indebtedness.
SECTION 1404. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness of the Company as
provided herein, the Holders of the Securities shall be subrogated (to the
extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article) to the rights of the
holders of such Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full. For the purpose of such
subrogation, no such payments or distributions to the holders of such Senior
Indebtedness by the Company, or by or on behalf of the Holders of the
Securities by virtue of this Article Fourteen, which otherwise would have
been made to such Holders shall, as between the Company and such Holders, be
deemed to be payment by the Company or on account of such Senior
Indebtedness, it being understood that the provisions of this Article
Fourteen are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on the one hand, and the holders of
such Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Securities would
otherwise have been entitled but for the provisions of this Article Fourteen
shall have been applied, pursuant to the provisions of this Article Fourteen,
to the payment of amounts payable under Senior Indebtedness of the Company,
then such Holders shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full.
SECTION 1405. Obligations of the Company Unconditional.
Nothing contained in this Article Fourteen or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company and
the Holders of the Securities of any series, the obligation of the Company,
which is absolute and unconditional, to pay to such Holders the principal of,
premium (if any) on and interest on the Securities of such series as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of such Holders and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Fourteen, of the
holders of Senior Indebtedness in respect of cash, property or securities of
the Company received upon the exercise of any such remedy. Notwithstanding
anything to the contrary in this Article Fourteen or elsewhere in this
Indenture or in the Securities, upon any distribution of assets of the
Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Sections 601 and 603, and the Holders of the Securities shall
be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
such Holders for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other Indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fourteen so long as such court has been apprised
of the provisions of, or the order, decree or certificate makes reference to,
the provisions of this Article Fourteen.
SECTION 1406. Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice.
The Trustee shall not at any time be charged with knowledge of the existence
of any facts that would prohibit the making of any payment to or by the
Trustee unless and until a Responsible Officer of the Trustee or any Paying
Agent shall have received, no later than two Business Days prior to such
payment, written notice thereof from the Company or from one or more holders
of Senior Indebtedness or from any representative therefor and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Sections 601 and 603, shall be entitled in all respects conclusively to
assume that no such fact exists.
SECTION 1407. Application by Trustee of Amounts Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in accordance
with Article Thirteen shall be for the sole benefit of Holders of the
Securities of series for the benefit of which such amounts were deposited,
and, to the extent allocated for the payment of Securities of such series,
shall not be subject to the subordination provisions of this Article
Fourteen. Otherwise, any deposit of assets with the Trustee or the Paying
Agent (whether or not in trust) for the payment of principal of, premium (if
any) on or interest on any Securities shall be subject to the provisions of
Sections 1401, 1402, 1403 and 1404; provided that if prior to two Business
Days preceding the date on which by the terms of this Indenture any such
assets may become distributable for any purpose (including without
limitation, the payment of either principal of, premium (if any) on or
interest on any Security), the Trustee or such Paying Agent shall not have
received with respect to such assets the written notice provided for in
Section 1406, then the Trustee or such Paying Agent shall have full power and
authority to receive such assets and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary that may be received by it on or after such date; and provided
further that nothing contained in this Article Fourteen shall prevent the
Company from making, or the Trustee from receiving or applying, any payment
in connection with the redemption of Securities if the first publication of
notice of such redemption (whether by mail or otherwise in accordance with
this Indenture) has been made, and the Trustee has received such payment from
the Company, prior to the occurrence of any of the contingencies specified in
Section 1402 or 1403.
SECTION 1408. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination provisions contained in this Article Fourteen shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with. The holders of Senior Indebtedness may
extend, renew, modify or amend the terms of the Senior Indebtedness or any
security therefor and release, sell or exchange such security and otherwise
deal freely with the Company, all without affecting the liabilities and
obligations of the parties to this Indenture or the Holders of the Securities.
SECTION 1409. Trustee to Effectuate Subordination of Securities.
Each Holder of a Security by his acceptance thereof authorizes and expressly
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provisions contained in this
Article Fourteen and to protect the rights of the Holders of the Securities
pursuant to this Indenture, and appoints the Trustee his attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit
of creditors of the Company), the filing of a claim for the unpaid balance of
his Securities in the form required in said proceedings and cause said claim
to be approved. If the Trustee does not file a proper claim or proof of debt
in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Senior Indebtedness or their representative is hereby authorized to have the
right to file and is hereby authorized to file an appropriate claim for and
on behalf of the Holders of said Securities. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of Senior Indebtedness or
their representative to authorize or consent to or accept or adopt on behalf
of any Holder of Securities any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee or the holders of Senior
Indebtedness or their representative to vote in respect of the claim of any
Holder of the Securities in any such proceeding.
SECTION 1410. Right of Trustee to Hold Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all of the rights
set forth in this Article Fourteen in respect of any Senior Indebtedness at
any time held by it to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
SECTION 1411. Article Fourteen Not to Prevent Events of Default.
The failure to make a payment on account of principal of or premium (if any)
on or interest on the Securities by reason of any provision of this Article
Fourteen shall not be construed as preventing the occurrence of a Default or
an Event of Default under Section 501 or in any way prevent the Holders of
the Securities from exercising any right hereunder other than the right to
receive payment on the Securities.
SECTION 1412. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness, and shall not be liable to any such holders (other than
for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of the Securities or the
Company or any other Person, cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article
Fourteen or otherwise. Nothing in this Section 1412 shall affect the
obligation of any other such Person to hold such payment for the benefit of,
and to pay such payment over to, the holders
of Senior Indebtedness or their representative.
SECTION 1413. Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article Fourteen shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that this Section 1413 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in the Borough of Manhattan, The City of New York as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 20 nor more than 120 days prior
to the date fixed for the meeting (or, in the case of a meeting of Holders
with respect to Securities of a series all or part of which are represented
by a Book-Entry Security, not less than 20 nor more than 40 days).
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 20 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held
as provided herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New York for such
meeting and may call such meeting for such purposes by giving notice thereof
as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
Upon the calling of a meeting of Holders with respect to the Securities of a
series, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to vote at such meeting, which
record date shall be the close of business on the day the notice of the
meeting of Holders is given in accordance with Section 1502. The Holders on
such record date, and their designated proxies, and only such Persons, shall
be entitled to vote at such meeting of Holders. To be entitled to vote at any
meeting of Holders a Person shall (a) be a Holder of one or more Securities
or (b) be a Person appointed by an instrument in writing as proxy by a Holder
of one or
more Securities; provided, however, that in the case of any meeting of
Holders with respect to the Securities of a series all or part of which are
represented by a Book-Entry Security, only Holders, or their designated
proxies, of record on the record date established pursuant to Section 1503
hereof shall be entitled to vote at such meeting. The only Persons who shall
be entitled to be present or to speak at any meeting of Holders shall be the
persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening
of an adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such series
which shall constitute a quorum. Notwithstanding the foregoing, no meeting of
Holders with respect to Securities of any series which is represented in
whole or in part by a Book-Entry Security shall be adjourned to a date more
than 90 days after the record date for such meeting unless the Trustee shall
send out a new notice of meeting and establish, in accordance with Section
1503, a new record date for Holders entitled to vote at such meeting.
Except as limited by the proviso of the first paragraph of Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by
Section 502 and the proviso to the first paragraph of Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly
provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
To the extent consistent with the terms of this Indenture, any resolution
passed or decision taken at any meeting of Holders of Securities of any
series duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify
to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be
entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
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 to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
LONE STAR TECHNOLOGIES, INC.
By:
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Name:
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Title:
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[TRUSTEE]
By:
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Name:
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Title:
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