PHH CORPORATION
and
BANK ONE TRUST COMPANY, N.A.
TRUSTEE
INDENTURE
DATED AS OF NOVEMBER 6, 2000
SENIOR DEBT SECURITIES
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions...................................................1
Act....................................................................2
Affiliate..............................................................2
Authenticating Agent...................................................2
Beneficial Owner.......................................................2
Board of Directors.....................................................2
Board Resolution.......................................................2
Business Day...........................................................2
Commission.............................................................2
Company................................................................2
Company Request" or "Company Order.....................................3
Corporate Trust Office.................................................3
Corporation............................................................3
Defaulted Interest.....................................................3
Depositary.............................................................3
Dollar.................................................................3
ECU....................................................................3
Event of Default.......................................................3
Fixed Rate Security....................................................3
Floating Rate Security.................................................3
Foreign Currency.......................................................3
Global Security........................................................3
Holder.................................................................4
Indenture..............................................................4
Interest...............................................................4
Interest Payment Date..................................................4
Market Exchange Rate...................................................4
Maturity...............................................................4
Officers' Certificate..................................................4
Opinion of Counsel.....................................................4
Original Issue Discount Security.......................................4
Outstanding............................................................4
Paying Agent...........................................................5
Person.................................................................5
Place of Payment.......................................................5
Predecessor Security...................................................5
Property...............................................................6
Redemption Date........................................................6
Redemption Price.......................................................6
Regular Record Date....................................................6
Responsible Officer....................................................6
Securities.............................................................6
Security Register......................................................6
Security Registrar.....................................................6
Special Record Date....................................................6
Stated Maturity........................................................6
Subsidiary.............................................................6
Trustee................................................................6
Trust Indenture Act....................................................6
Vice President.........................................................6
SECTION 102. Compliance Certificates and Opinions..........................7
SECTION 103. Form of Documents Delivered to Trustee........................7
SECTION 104. Acts of Holders...............................................8
SECTION 105. Notices, Etc., to Trustee and Company.........................9
SECTION 106. Notice to Holders; Waiver.....................................9
SECTION 107. Conflict with Trust Indenture Act............................10
SECTION 108. Effect of Headings and Table of Contents.....................10
SECTION 109. Successors and Assigns.......................................10
SECTION 110. Separability Clause..........................................10
SECTION 111. Benefits of Indenture........................................10
SECTION 112. Governing Law................................................11
SECTION 113. Legal Holidays...............................................11
SECTION 114. Indenture and Securities Solely Corporate Obligations........11
SECTION 115. Consent of Holders of Securities in a Foreign Currency
or ECU.....................................................11
SECTION 116. Payment Currency.............................................12
SECTION 117. Officers' Certificate Regarding Withholding Obligations......12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally..............................................13
SECTION 202. Form of Trustee's Certificate of Authentication..............13
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.........................14
SECTION 302. Denominations................................................16
SECTION 303. Execution, Authentication, Delivery and Dating...............16
SECTION 304. Temporary Securities.........................................17
SECTION 305. Registration, Registration of Transfer and Exchange..........18
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............19
SECTION 307. Payment of Interest; Interest Rights Preserved...............19
SECTION 308. Persons Deemed Owners........................................20
SECTION 309. Cancellation.................................................21
SECTION 310. Computation of Interest......................................21
SECTION 311. Global Securities............................................21
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Securities of any Series.......23
SECTION 402. Satisfaction and Discharge of Indenture......................25
SECTION 403. Application of Trust Money...................................25
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................26
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........27
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................28
SECTION 504. Trustee May File Proofs of Claim.............................28
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities................................................29
SECTION 506. Application of Money Collected...............................29
SECTION 507. Limitation on Suits..........................................30
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................30
SECTION 509. Restoration of Rights and Remedies...........................31
SECTION 510. Rights and Remedies Cumulative...............................31
SECTION 511. Delay or Omission Not Waiver.................................31
SECTION 512. Control by Holders...........................................31
SECTION 513. Waiver of Past Defaults......................................32
SECTION 514. Undertaking for Costs........................................32
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..........................33
SECTION 602. Notice of Defaults...........................................34
SECTION 603. Certain Rights of Trustee....................................34
SECTION 604. Not Responsible for Recitals or Issuance of Securities.......35
SECTION 605. May Hold Securities..........................................35
SECTION 606. Money Held in Trust..........................................36
SECTION 607. Compensation and Reimbursement...............................36
SECTION 608. Disqualification; Conflicting Interests......................36
SECTION 609. Corporate Trustee Required; Eligibility......................41
SECTION 610. Resignation and Removal; Appointment of Successor............41
SECTION 611. Acceptance of Appointment by Successor.......................43
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business..................................................44
SECTION 613. Preferential Collection of Claims Against Company............44
SECTION 614. Appointment of Authenticating Agent..........................48
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.......50
SECTION 703. Reports by Trustee...........................................51
SECTION 704. Reports by Company...........................................52
ARTICLE EIGHT
RESTRICTIVE COVENANTS; SUCCESSOR CORPORATION
SECTION 801. Certain Definitions..........................................52
SECTION 802. Limitation on Liens..........................................54
SECTION 803. Intentionally Omitted........................................56
SECTION 804. Intentionally Omitted........................................56
SECTION 805. No Lien Created, etc.........................................56
SECTION 806. When Company May Merge, etc..................................56
SECTION 807. When Securities Must Be Secured..............................56
SECTION 808. Opinion of Counsel...........................................56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...........57
SECTION 903. Execution of Supplemental Indentures.........................59
SECTION 904. Effect of Supplemental Indentures............................59
SECTION 905. Conformity with Trust Indenture Act..........................59
SECTION 906. Reference in Securities to Supplemental Indentures...........59
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest...................60
SECTION 1002. Maintenance of Office or Agency..............................60
SECTION 1003. Money for Securities Payments to Be Held in Trust............61
SECTION 1004. Corporate Existence..........................................62
SECTION 1005. Statement as to Compliance...................................62
SECTION 1006. Waiver of Certain Covenants..................................63
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.....................................63
SECTION 1102. Election to Redeem; Notice to Trustee........................63
SECTION 1103. Selection by Trustee of Securities to be Redeemed............63
SECTION 1104. Notice of Redemption.........................................64
SECTION 1105. Deposit of Redemption Price..................................65
SECTION 1106. Securities Payable on Redemption Date........................65
SECTION 1107. Securities Redeemed in Part..................................65
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.....................................66
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........66
SECTION 1203. Redemption of Securities for Sinking Fund....................67
INDENTURE, dated as of November 6, 2000, between PHH Corporation, a
corporation duly organized and existing under the laws of the State of
Maryland (herein called the "Company"), and Bank One Trust Company, N.A., a
national banking association duly incorporated and existing under the laws
of the United States of America, 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
and unsubordinated debentures, notes or other evidences of senior
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 covenanted and agreed,
for the equal and proportionate benefit of all holders of the Securities or
of any 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" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted 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 Article Eight, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate and deliver Securities.
"Beneficial Owner" means, with respect to Global Securities, the
Person who is the beneficial owner of such Securities as effected on the
books of the Depositary for such Securities or on the books of a Person
maintaining an account with such Depositary (directly or as an indirect
participant, in accordance with the rules of such Depositary).
"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.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment, and (i) with respect
to Securities denominated in a Foreign Currency, the capital city of the
country of the Foreign Currency, or (ii) with respect to Securities
denominated in ECU, Brussels, are authorized or obligated by it to close.
"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.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be administered. At the date of this Indenture, the Corporate Trust
Office of the Trustee is located at 0 Xxxx Xxx Xxxxx, Xxxxx XX0-0000,
Xxxxxxx, Xxxxxxxx 00000-0126.
"Corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means a clearing agency registered as such under the
Securities Exchange Act of 1934, as amended, or any successor thereto,
which shall in either case be designated by the Company pursuant to Section
301 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at
any time there is more than one such Person, "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with
respect to the Securities of that series.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the European Currency Unit as defined from time to time
by the Council of European Communities.
"Event of Default" has the meaning specified in Section 501.
"Fixed Rate Security" means a Security which provides for the payment
of interest at a fixed rate.
"Floating Rate Security" means a Security which provides for the
payment of interest at a variable rate determined periodically by reference
to an interest rate index or other index specified pursuant to Section 301.
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Global Security" means a Security evidencing all or part of a series
of Securities which is executed by the Company and authenticated and
delivered to the Depositary or pursuant to the Depositary's instructions,
all in accordance with this Indenture and pursuant to a Company Order,
which shall be registered in the name of the Depositary or its nominee and
which shall represent the amount of uncertificated securities as specified
therein.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"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 any Officers' Certificates setting forth the form
and terms of particular series of Securities as contemplated by Sections
201 and 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.
"Lien" means any mortgage, pledge, lien, security interest or
encumbrance.
"Market Exchange Rate" means on a given date, the noon buying rate in
New York City for cable transfers for the stated Foreign Currency as
certified for customs purposes by the Federal Reserve Bank of New York on
such date; provided that, in the case of the ECU, Market Exchange Rate
shall mean the rate of exchange determined by the Council of European
Communities (or any successor thereto) as published for such date in the
Official Journal of the European Communities or any successor publication.
"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 signed by the Chairman,
the President, a Vice President or the Treasurer, and by an Assistant
Treasurer, the Controller, an Assistant Controller, 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 or the Trustee, and who shall be
acceptable to the Trustee, which opinion is delivered to the Trustee.
"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 or portions thereof 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; provided that, if such
Securities or portions thereof are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to 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 Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, 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, 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. In determining the requisite
principal amount of any Original Issue Discount Security, such principal
amount that shall be deemed to be Outstanding shall be equal to the amount
of the principal thereof that could be declared to be due and payable upon
an Event of Default pursuant to the terms of such Original Issue Discount
Security at the time of such determination.
"Paying Agent" means any person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Security on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if
any) and interest, if any, on the Securities of that series are payable as
specified as contemplated in Section 301 or, if not so specified, as
specified in Section 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Property" means any kind of property or asset, whether real,
personal or mixed, tangible or intangible.
"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.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means
any officer of the Trustee assigned to administer corporate trust matters
and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"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
"Special Record Date" for the payment of any Defaulted Interest 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 as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means with respect to any Person, any corporation,
association, joint venture, partnership, limited liability company or other
business entity of which at least a majority of the voting stock or other
ownership interests having voting power for the election of directors (or
the equivalent) is, at the time as of which any determination is being
made, owned or controlled by such Person or one or more subsidiaries of
such Person, or by such Person and one or more subsidiaries of such Person.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, provided,
however, that 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.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as
provided in Section 905.
"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 shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, 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 (or Holders of any series) may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments, proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company and any agent of the Trustee or the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by 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; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date, provided that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provision of this Indenture not later than six months after the record
date.
(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, the Security Registrar, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Except as otherwise specifically provided herein, 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, 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 the attention of its Treasurer at PHH Corporation, 0 Xxxxxx
Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 or any other address subsequently
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address 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. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed
in the manner prescribed by this Indenture shall be conclusively presumed
to have been duly given whether or not received by any particular Holder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any
of the provisions of the Trust Indenture Act, such required 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 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, express or implied,
shall give to any Person, other than the parties hereto, any Paying Agent,
any Security Registrar, or any Authenticating Agent and their respective
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed and construed by
and 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, the
Stated Maturity of any Security or any date upon which any Defaulted
Interest is proposed to be paid shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of interest, if any, or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date, Redemption
Date, at the Stated Maturity, or on the date for payment of Defaulted
Interest, provided that no interest shall accrue for the period from and
after such Interest Payment Date, Redemption Date, Stated Maturity or date
for the payment of Defaulted Interest, as the case may be.
SECTION 114. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of (or premium, if any)
or interest on any Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental
indenture, or in any Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the
Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue
of the Securities.
SECTION 115. Consent of Holders of Securities in a Foreign Currency or ECU.
Unless otherwise specified in a certificate delivered pursuant to
Section 301 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken
by the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at
the time Outstanding and, at such time, there are Outstanding Securities of
any series which are denominated in a coin, currency or currency unit other
than Dollars, then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action
shall be that amount of Dollars that could be obtained for the stated
Foreign Currency or ECU principal amount of such Outstanding Securities at
the Market Exchange Rate on the record date for the purpose of taking such
action. If the appropriate Market Exchange Rate is not available for any
reason with respect to the stated currency or currency unit, the Trustee
shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, in the case of ECU,
the rate of exchange as published in The Wall Street Journal, as of the
most recent available date, or quotations or, in the case of ECUs, rates of
exchange from one or more major banks in The City of New York or in the
country of issue of the currency in question which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of
ECU, rates of exchange as the Trustee shall deem appropriate. All decisions
and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be
in its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company and
all Holders.
SECTION 116. Payment Currency.
If the principal of and/or interest on (or premium, if any, on) any
Securities is payable in a Foreign Currency or ECU and such Foreign
Currency or ECU is not available for payment due to the imposition of
exchange controls or other circumstances beyond the control of the Company,
then the Company shall be entitled to satisfy its obligations to Holders
under this Indenture by making such payment in Dollars on the basis of the
Market Exchange Rate for such Foreign Currency or ECU on the latest date
for which such rate was established on or before the date on which payment
is due. Any payment made under this Section 116 in Dollars where the
required payment is in a Foreign Currency or ECU shall not constitute an
Event of Default.
SECTION 117. Officers' Certificate Regarding Withholding Obligations.
At least 15 days prior to the first Interest Payment Date and at
least 15 days prior to each date of payment of principal, premium, if any,
or interest thereafter if there has been any change with respect to the
matters set forth in the below-mentioned certificate, the Company will
furnish the Trustee and each Paying Agent with an Officers' Certificate
instructing the Trustee and each Paying Agent whether such payment of
principal of and premium, if any, or interest on the Securities shall be
made without deduction or withholding for or on account of any tax,
assessment or other governmental charge imposed upon or as a result of such
payment. If any such deduction or withholding shall be required, then such
certificate shall specify, by country, the amount, if any, required to be
withheld on such payment to Holders of Securities and the Trustee will
cause such amounts to be withheld. The Company agrees to indemnify the
Trustee and each 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 them in reliance on any certificate furnished pursuant to this
Section.
In furnishing this Officers' Certificate, the Company shall be
entitled to rely on advice of counsel reasonably acceptable to the Trustee
and the Paying Agent and on information furnished in writing to the Company
and any agent or underwriter concerning the residences of the Holders of
the Securities, but such reliance shall not impair the indemnification set
forth in the foregoing paragraph.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the 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 or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form
of Securities of any series is established by action taken pursuant to a
Board Resolution, an appropriate Officers' Certificate setting forth such
form together with a copy of the Board Resolution shall be 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.
The definitive Securities shall be printed, typed, lithographed or
engraved or produced by any combination of these methods or may be produced
in any other manner permitted by the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated herein issued
under the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A., as Trustee
By
Authorized Officer
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. There shall be
established in or pursuant to a procedure established in a Board
Resolution, and set forth in an Officers' Certificate, 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 the Securities of all other series);
(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);
(3) the date or dates on which the principal of (and premium, if any,
on) the Securities of the series is payable, or the manner in which such
dates are determined;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the manner in which such rates are determined,
the date or dates from which any such interest shall accrue, or the manner
in which such dates are determined, the Interest Payment Dates on which any
such interest shall be payable, the Regular Record Dates, if any, for the
payment of interest on any Interest Payment Date and the rate or rates of
interest, if any, payable on overdue installments of interest on or
principal of (or premium, if any, on) the Securities of the series, and
whether the interest rate may be reset upon certain designated events and,
in the case of Floating Rate Securities, the notice, if any, to Holders
regarding the determination of interest and the manner of giving such
notice, and the extent to which, or the manner in which, any interest
payable on any Global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 307;
(5) if other than the Trustee, the identity of the Security Registrar
and, if other than as specified in Section 1002, the place or places where
the principal of (and premium, if any) and interest, if any, on Securities
of the series shall be payable, provided, however, that, at the option of
the Company, any interest on the Securities of any series may be paid by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register;
(6) if the Securities of such series are redeemable, the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $5,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(10) additional covenants of the Company, if any, for the benefit of
the Holders of Securities of such series and additional Events of Default,
if any, with respect to Securities of such series;
(11) if the provisions of Section 401(4) relating to satisfaction and
discharge of Securities more than one year prior to their Stated Maturity
or redemption shall apply to Securities of the series, a statement of such
fact;
(12) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to
any Foreign Currency or ECU);
(13) if the amount of payments of principal (and premium, if any) or
interest, if any, on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(14) provisions, if any, for the defeasance of Securities of the
series;
(15) the date as of which any Global Security representing any
Outstanding Debt Securities of the series shall be dated if other than the
date of original issuance of the first Security of the series to be issued;
(16) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities; and
(17) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the Securities of
such series.
All Securities of any one series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, the
date or dates from which interest shall accrue and maturity and except as
may otherwise be provided in or pursuant to such Board Resolution and set
forth in such Officers' Certificate 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.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated
by Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable
in denominations of $5,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any two
of its Chairman of the Board, its President, any Vice President, its
Treasurer or its Secretary, under its corporate seal reproduced thereon.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
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 to the Trustee or an Authenticating
Agent for authentication Securities of any series executed by the Company,
together with a Company Order for the authentication and delivery of such
Securities, and the Trustee or such Authenticating Agent in accordance with
the Company Order shall authenticate and deliver such Securities. If all
the Securities of any series are not to be issued at one time, and if the
Board Resolution, Officers' Certificate or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities
and the determination of the terms of particular Securities of such series
such as interest rate, maturity date, date of issuance and date from which
interest shall accrue. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
and
(b) if the terms of such Securities 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.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Security, but such Opinion of Counsel, with appropriate
modifications, may instead be delivered at or prior to the time of issuance
of the first Security of such series.
The Trustee or any Authenticating Agent shall have the right to
authenticate and deliver any of such Securities if it, being advised by
counsel, determines that such action may not lawfully be taken, or if it,
its board of directors, trustees, executive committee, or a trust committee
of directors or trustees and/or vice presidents shall determine in good
faith that such action would expose it to personal liability to existing
Holders or 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.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for herein executed by the Trustee or an Authenticating Agent 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 and is 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 or an
Authenticating Agent shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued 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.
Nominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
With respect to each series of Securities, the Company shall cause to
be kept at one of the offices or agencies maintained pursuant to Section
1002 a register (the register maintained in such office and in any other
office or agency established by the Company in a Place of Payment being
herein 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 Securities of that series and
of transfers of Securities of that series. Pursuant to Section 301, the
Company shall appoint, with respect to Securities of each series, a
"Security Registrar" for the purpose of registering such Securities and
transfers and exchanges of such Securities as herein provided. In the event
the Trustee shall not be Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Security of any
series at the designated office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee or an Authenticating
Agent shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of the same series,
of any authorized denominations and of a like tenor, aggregate principal
amount and Stated Maturity.
At the option of the Holder, Securities of any series (except Global
Securities) may be exchanged for other Securities of the same series, of
any authorized denominations and of a like tenor, aggregate principal
amount and Stated Maturity, upon surrender of the Securities to be
exchanged at such office or agency and upon payment, if the Company shall
so require, of the charges hereinafter provided. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
or an Authenticating Agent shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
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 Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Trustee or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar (and, if so required by the Trustee, to the Trustee) 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 to 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 the day of selection for redemption of
Securities of that series selected for redemption under Section 1103 and
ending at the close of business on the day of the mailing of notice of
redemption, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If there shall be delivered to the Company and the Trustee (i) a
mutilated Security or evidence to their satisfaction of the destruction,
loss or theft of any Security 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 has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee or an Authenticating Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of the same series and
of like tenor, principal amount and Stated Maturity and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security 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.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest on any 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 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 registered Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest
to the persons in whose names the 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 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 Securities of
such series at his address as it appears in the Security Register, not less
than l0 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 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
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, 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 Security for registration of transfer,
the Company, the Trustee, any Paying Agent, any Authenticating Agent and
any other agent of the Company or the Trustee may treat the Person in whose
name such 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 Section 307) interest, if any, on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee, any Paying Agent, any Authenticating
Agent nor any other agent of the Company or the Trustee shall be affected
by notice to the contrary.
SECTION 309. Cancellation.
All Securities 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 and shall be promptly cancelled by it. 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 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
shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless the Company by
Company Order shall direct that such cancelled Securities be returned to
it.
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.
SECTION 311. Global Securities.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 303 and the Company Order with
respect to such series, authenticate and deliver one or more Global
Securities in temporary or permanent form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount
of the outstanding Securities of such series to be represented by one or
more Global Securities, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
depositary, (iii) shall be delivered by the Trustee to such depositary or
pursuant to such depositary's instruction, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive form, this Security may not
be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor depositary or a nominee of such successor Depositary." The
Trustee shall deal with the Depositary and its participants as
representatives of the Beneficial Owners of the Global Securities for
purposes of exercising the rights of the Holders hereunder and the rights
of the Beneficial Owners of the Global Securities shall be limited to those
established by law and agreements between such Beneficial Owners and the
Depositary and its participants. Beneficial Owners shall not be entitled to
certificates for Global Securities as to which they are the Beneficial
Owners. Requests and directions from, and votes of, such representatives
shall not be deemed to be inconsistent if they are made with respect to
different Beneficial Owners.
Notwithstanding any other provision of this Section or Section 305,
unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such depositary or by a nominee
of such depositary to such depositary or another nominee of such depositary
or by such depositary or any such nominee to a successor Depositary for
such series or a nominee of such successor depositary. The Beneficial
Owner's ownership of Securities shall be recorded on the records of a
participant of the Depositary that maintains such Beneficial Owner's
account for such purpose and the participant's record ownership of such
Securities shall be recorded on the records of the Depositary.
If at any time the Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as Depositary for
the Securities of such series or if at any time the Depositary for
Securities of a series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depositary
with respect to the Securities of such series. If a successor Depositary
for the Securities of such series is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
condition, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities
of such series, will authenticate and deliver, Securities of such series in
definitive form in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in
exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or
Securities. In such event, the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive form and in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such series in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 301 with respect to
Securities of a series, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in
whole or in part for Securities of such series in definitive form on such
terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute and the Trustee shall authenticate and deliver,
without charge,
(i) to each Person specified by the Depositary a new Security or
Securities of the same series, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for
such Person's beneficial interest in the Global Security; and
(ii) to the Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section 311 shall
be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee.
The Trustee shall deliver such Securities to the persons in whose names
such Securities are so registered.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Securities of any Series.
The Company shall be deemed to have satisfied and discharged the
entire indebtedness on all the Securities of any particular series and the
Trustee, upon Company request and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either:
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in the last
paragraph of Section 1003) have been delivered to the Trustee for
cancellation; or
(B) with respect to all Outstanding Securities of such series
described in (A) above not theretofore delivered to the Trustee for
cancellation,
(i) The Company has deposited or caused to be deposited with the
Trustee as trust funds in trust an amount sufficient to pay and discharge
the entire indebtedness on all such Outstanding Securities of such series
for principal (and premium, if any) and interest to the Stated Maturity or
any Redemption Date as contemplated by Section 403, as the case may be; or
(ii) The Company has deposited or caused to be deposited with the
Trustee as obligations in trust such amount of direct obligations of, or
obligations the principal of and interest on which are fully guaranteed by,
the United States of America (other than obligations subject to prepayment,
redemption or call prior to their stated maturity) as will, together with
the predetermined and certain income to accrue thereon (without
consideration of any reinvestment thereof), be sufficient to pay and
discharge when due the entire indebtedness on all such Outstanding
Securities of such series for principal (and premium, if any) and interest
to the Stated Maturity or any Redemption Date as contemplated by Section
403, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Securities of such series;
(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 the
entire indebtedness on all Securities of such series have been complied
with; and
(4) if the entire indebtedness on the Outstanding Securities of such
series is to be satisfied and discharged pursuant to Section 401(l)(B)
above, then (i) the Company shall have specified the applicability (as
provided in Section 301) of this Section 401(4) to the Securities of such
series, (ii) the Company shall have given, not later than the date of such
deposit, notice of such deposit to the Holders of Securities of such series
and (iii) the Trustee shall have received an Opinion of Counsel (which
Counsel shall be recognized tax counsel) stating that, (x) the Company has
received from the Internal Revenue Service a ruling or (y) since the date
of the Indenture, there has been a change in the applicable federal income
tax law, including by means of a Revenue Ruling published by the Internal
Revenue Service, in either case to the effect that, and based thereon such
Opinion of Counsel will confirm that the deposit of funds or obligations
and the satisfaction and discharge of indebtedness on the Securities of
such series pursuant to this Section 401 will not result in recognition by
the Holders of income, gain or loss for federal income tax purposes (other
than income, gain or loss which would have been recognized in like amount
and at a like time absent such deposit, satisfaction and discharge),
provided that the Company will be discharged from the requirements of
Article 8 if (i) it has satisfied all of the requirements for satisfaction
and discharge of the indebtedness on the Outstanding Securities pursuant to
Section 401(1)(B) except for the delivery of the Opinion of Counsel
described above, and (ii) the Trustee shall have received an Opinion of
Counsel stating that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of the deposit of such funds or
obligations and will be subject to federal tax in the same amounts, in the
same manner and at the same times as would have been the case if such
deposit of funds or obligations had not occurred.
Upon the satisfaction of the conditions set forth in this Section 401
with respect to all the Securities of any series, the terms and conditions
of such series, including the terms and conditions with respect thereto set
forth in this Indenture, shall no longer be binding upon, or applicable to,
the Company, and the Holders of the Securities of such series shall look
for payment only to the funds or obligations deposited with the Trustee
pursuant to Section 401(l)(B); provided, however, that, in no event shall
the Company be discharged (a) from any payment obligations in respect of
Securities of such series which are deemed not to be Outstanding under
clause (iii) of the definition thereof if such obligations continue to be
valid obligations of the Company under applicable law, (b) from any
obligations under Section 607 or the last paragraph of Section 1003, and
(c) from any obligations under Section 305 and 306 (except that Securities
of such series issued upon registration of transfer or exchange or in lieu
of mutilated, lost, destroyed or stolen Securities shall not be obligations
of the Company), and Section 701.
SECTION 402. Satisfaction and Discharge of Indenture.
Upon compliance by the Company with the provisions of Section 401 as
to the satisfaction and discharge of each series of Securities issued
hereunder, this Indenture shall cease to be of any further effect (except
as otherwise provided herein). Upon Company Request (and at the expense of
the Company), the Trustee shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture. In the event there are two or
more Trustees hereunder, then the effectiveness of any such instrument
shall be conditioned upon receipt of such instruments from all Trustees
hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, any
obligations of the Company under Sections 305, 306, 607 and 701 and the
last paragraph of Section 1003, and of the Trustee under Sections 403 and
614 and the last two paragraphs of Section 1003, shall survive.
SECTION 403. Application of Trust Money.
Subject to the provisions of the last two paragraphs of Section 1003,
all money and obligations deposited with the Trustee pursuant to Section
401 shall be held irrevocably in trust and shall be made under the terms of
an escrow trust agreement in form and substance satisfactory to the
Trustee. Such money and obligations shall be applied by the Trustee, in
accordance with the provisions of the Securities, this Indenture and such
escrow trust agreement, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of
(and premium, if any) and interest, if any, on the Securities for the
payment of which such money and obligations have been deposited with the
Trustee (but such money need not be segregated from other funds except to
the extent required by law). If Securities of any series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement,
the Company shall make such arrangements as are satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever 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 voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative
or governmental body):
(1) default in the payment of any 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
agreement of the Company in this Indenture (other than a covenant or
agreement 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 Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for all or substantially
all of its property, or
(C) orders the liquidation of the Company, and the order or decree
remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11 of the U.S. Code or any
similar Federal or State law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
(7) any other Event of Default provided with respect to the
Securities of that series pursuant to Section 301 or in a supplemental
indenture.
SECTION 502. Acceleration of Maturity; Rescission 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 the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of
that series) 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 portion) shall become immediately due and payable.
Upon payment of such amount, all obligations of the Company in
respect of the payment of principal of the Securities of such series shall
terminate.
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, if any, 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 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, if any, 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 rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security of
any series when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at the Maturity thereof, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the Holders
of Securities of such series, the whole amount then due and payable on
Securities of such series for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on
any overdue interest, at the rate or rates, if any, 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 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 other 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 of acceleration 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 (or
with respect to Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities), and
premium, if any 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 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 to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due 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 any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities 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 the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
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
premium, if any) or interest, upon presentation of the Securities 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;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the Securities
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, if any, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) An Event of Default shall have occurred and be continuing with
respect to the Securities of that series and such Holder shall have
previously given written notice thereof to the Trustee;
(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
Holder or to obtain or to seek to obtain priority or preference over any
other Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all Holders
of Securities of such series.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest, if any, on such Security on the Stated Maturity or
Maturities expressed in such Security (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 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 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 in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders 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
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 may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
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,
(3) such direction is not unduly prejudicial to the rights of other
Holders, and
(4) such direction would not involve the Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than 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 waive any past default hereunder with respect
to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any (subject to the provisions of Section 502), 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 the Securities of such series under 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
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 at trial and on appeal, 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 for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after
the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
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 certificate or opinion which by any provision hereof
is specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not it conforms
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, 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,
suffered 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, as provided in Section 512, 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 herein expressly so provided, every provision of
this Indenture relating to the conduct of or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series, as their names and addresses
appear in the Security Register, notice of such default hereunder actually
known to a Responsible Officer of 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 premium, if any) or
interest, if any, on any Security of such series, in the payment of any
sinking fund installment with respect to Securities of such series or in
the payment of the Redemption Price of any Securities as to which notice of
redemption has been given, 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 determines that the withholding of such notice is in
the interest 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 provisions 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, other evidence of indebtedness 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 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 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, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(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, including any
Authenticating Agent, appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
certificates of authentication, shall be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
Neither the Trustee nor any Authenticating Agent shall 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, the Security
Registrar or any other agent of the Company or the Trustee, in their
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any paying Agent shall be subject to any 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 any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any claim
or liability in connection with the exercise or performance of any of their
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 (or premium, if
any) or interest, if any, on Securities.
The provisions of this Section 607 shall survive the resignation or
removal of the Trustee or the discharge of this Indenture. When the Trustee
incurs expenses after the occurrence of a default specified in Section
501(5) or (6) the expenses are intended to constitute expenses of
administration under any Bankruptcy law.
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, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with respect
to the Securities of that series in the manner and with the effect
hereinafter specified in this Article.
(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 l0 days after the expiration of
such 90-day period, transmit by mail to all Holders of Securities of that
series, as their names and addresses appear in the Security Register,
notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series
if:
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Securities issued under this
Indenture, provided that there shall be excluded from the operation of this
paragraph this Indenture with respect to the Securities of any series other
than that series or any indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures are wholly
unsecured and such other indenture or indentures are hereafter qualified
under the Trust Indenture Act, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c) of the Trust
Indenture Act that differences exist between the provisions of this
Indenture with respect to Securities of that series and one or more other
series or the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it necessary
in the public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to the
Securities of that series and such other series or under such other
indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon,
that trusteeship under this Indenture with respect to the Securities of
that series and such other series or such other indenture or indentures is
not so likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to the Securities of that series and such other series or under
such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon any Securities of such series or an underwriter for the
Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns, on March 1 in any calendar year, in the
capacity of executor, administrator, testamentary or inter vivos trustee,
guardian, committee or conservator, or in any other similar capacity, an
aggregate of 25% or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a specified percentage
of which would have constituted a conflicting interest under paragraph (6),
(7) or (8) of this Subsection. As to any such securities of which the
Trustee acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions of
the preceding sentence shall not apply, for a period of two years from the
date of such acquisition, to the extent that such securities included in
such estate do not exceed 25% of such voting securities or 25% of any such
class of security. Promptly after March 1 in each calendar year, the
Trustee shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such March 1. If the Company fails to make
payment in full of the principal of (or premium, if any) or interest, if
any, on any of the Securities when and as the same becomes due and payable,
and such failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such 30-day
period, and after such date, notwithstanding the foregoing provisions of
this paragraph, all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but only so long as
such failure shall continue, be considered as though beneficially owned by
the Trustee for the purposes of paragraphs (6), (7) and (8) of this
Subsection with respect to Securities of such series.
In determining whether the Trustee has a conflicting interest with
respect to any series of Securities under this Subsection, each other
series of Securities will be treated as having been issued under an
indenture other than this Indenture.
The specification of percentages in paragraphs (5) through (9),
inclusive, of this Subsection shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but
shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a person by one or more
banks, trust companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment of
principal shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner or holder
of (A) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(ii) above, or (B) any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the Company,
means every person who, within three years prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the
following provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition.
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced by
such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof; provided, however, that any voting securities of an issuer shall
be deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes; and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture
SECTION 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, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 subject to supervision or examination by
Federal, State or District of Columbia authority. If such corporation
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.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee or Trustees pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee or
Trustees 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 the Trustee shall fail to comply with Section
608(a) after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, the
Company by a Board Resolution may remove the Trustee with respect to the
Securities of such series or, subject to Section 514, any Holder 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 removal of the Trustee
with respect to the Securities of such series and the appointment of a
successor Trustee.
(e) If at any time:
(1) 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 Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) 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 such 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 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.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of 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 or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
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 with
respect to such series. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of the Securities of such series and accepted appointment in the
manner required by Section 611, any Holder 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.
(g) 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 by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their names
and addresses appear in the Security Register. 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 series of Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges due
pursuant to Section 607, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
subject to the lien provided in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all series of 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 or that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and 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 the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or these series to which
the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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.
(a) Subject to Subsection (b) of this Section, if the Trustee shall
be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as
defined in Subsection (c) of this Section, or subsequent to such a default,
then, unless and until such default shall be cured, the Trustee shall set
apart and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of other
indenture securities, as defined in Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three month period for property
held as security at the time of such substitution shall, to the extent of
the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of
such paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders and the holders of other indenture
securities in such manner that the Trustee, the Holders and the holders of
other indenture securities realize, as a result of payments from such
special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, the same
percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the
Company of the funds and property in such special account and before
crediting to the respective claims of the Trustee and the Holders and the
holders of other indenture securities dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law, but after
crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in
this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Code or applicable State law, whether such distribution is made
in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim.
The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion among
the Trustee, the holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property
held in such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the
distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning
of such three month period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such three
month period, it shall be subject to the provisions of this Subsection if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account if such Trustee had continued as
Trustee, occurred after the beginning of such three month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, escrow agent, paying agent, fiscal agent or depositary, or other
similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of (or premium, if any) or interest, if any, on any of the
Securities or upon the other indenture securities when and as such
principal (or premium, if any) or interest, if any, becomes due and
payable;
(2) the term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in the special account provided for in this Section;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Code" means the United States
Bankruptcy Code or Title 11 of the United States Code.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the
Trustee may 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 and deliver Securities of such series with
respect to which it has been so designated, and Securities so authenticated
and delivered shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder.
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 bank or trust company or corporation
organized and doing business and in good standing under the laws of the
United States, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal, State or District of Columbia authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or 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 resign with respect to one or more
series of Securities 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 with respect to one or more series of
Securities 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 Securities 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 Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section. The
provisions of Sections 104, 111, 603, 604 and 605 shall be applicable to
any Authenticating Agent.
Pursuant to each appointment made under this Section, the Securities
of each series covered by such appointment may have endorsed thereon, in
lieu of the Trustee's certificate of authentication, an alternate
certificate of authentication in substantially the following form:
This is one of the Securities, of the series designated herein,
issued under the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.
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.
The Company will furnish or cause to be furnished to the Trustee
with respect to the Securities of each series (a) semi-annually, either (i)
not later than June 30 and December 31 in each year in the case of Original
Issue Discount Securities which by their terms bear interest only after
Maturity, or (ii) not later than 15 days after each Regular Record Date in
the case of Securities of any other series, if and so long as Securities of
such series are Outstanding, and (b) at such other times as the Trustee may
request in writing, within 30 days after receipt by the Company of such
request, a list in such form as the Trustee may reasonably require
containing all the information in the possession or control of the Company,
or any of its Paying Agents other than the Trustee, as to the names and
addresses of the Holders obtained since the date as of which the next
previous list, if any, was furnished; provided, however, that any such list
may exclude names and addresses received by the Trustee in its capacity as
Security Registrar if it shall be so acting. Any such list may be dated as
of a date not more than 15 days prior to the time such information is
furnished or caused to be furnished and need not include information
received after such date.
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 contained in the
most recent list furnished to the Trustee as provided in Section 701 and
the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar or Paying Agent, if so acting.
The Trustee may (i) destroy any list furnished to it as provided in
Section 701 upon receipt of a new complete list so furnished, (ii) destroy
any information received by it as Paying Agent or Security Registrar (if so
acting) hereunder upon delivering to itself as Trustee, not earlier than 45
days after June 30 and December 31 of each year, a list containing the
names and addresses of the Holders obtained from such information since the
delivery of the next previous list, if any, and (iii) destroy any list
delivered to itself as Trustee which was compiled from information received
by it as Paying Agent or Security Registrar (if so acting) hereunder upon
the receipt of a new complete list so delivered.
(b) If three or more Holders of Securities of any series (herein
referred to as "applicants") apply in writing to the Trustee, and furnish
to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders of Securities of such series or
with Holders of all Securities with respect to their rights under this
Indenture or under such Securities and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or all Securities as the case may be whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 702(a), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall upon the written request of such
applicants mail to each Holder of Securities of such series or all
Securities as the case may be whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days
after such tender the Trustee shall mail to such applicants and file with
the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders of Securities
of such series or all Securities as the case may be or would be in
violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of
an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor the Security Registrar nor any agent of
any of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of 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 May 1 of each year commencing with the May
1 following the date of this Indenture, if and so long as any Securities
are Outstanding hereunder, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security Register, a
brief report dated as of such March 1 that complies with Trust Indenture
Act Para. 313(a). The Trustee shall also comply with Trust Indenture Act
Para. 313(b).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities
exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are
listed on any securities 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; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
RESTRICTIVE COVENANTS; SUCCESSOR CORPORATION
SECTION 801. Certain Definitions.
"Asset Securitization Subsidiary" means (i) any Subsidiary engaged
solely in the business of effecting asset securitization transactions, and
(ii) any Subsidiary whose primary purpose is to hold title or ownership
interests in vehicles, mortgage loans, relocation assets and related assets
under management.
"Consolidated Assets" means, at any date of determination, the total
assets of the Company and its Consolidated Subsidiaries determined in
accordance with generally accepted accounting principles in effect from
time to time.
"Consolidated Net Worth" means, at any date of determination, all
amounts which would be included on a balance sheet of the Company and its
Consolidated Subsidiaries under stockholders equity determined in
accordance with generally accepted accounting principles in effect from
time to time.
"Consolidated Subsidiaries" means all Subsidiaries of the Company
that are required to be consolidated with the Company for financial
reporting purposes in accordance with generally accepted accounting
principles in effect from time to time.
"Debt" means (i) all debt, obligations and other liabilities of the
Company and its Subsidiaries which are, at the date as of which Debt is to
be determined, includable as liabilities in a consolidated balance sheet of
the Company and its Subsidiaries, other than (x) accounts payable and
accrued expenses, (y) advances from clients obtained in the ordinary course
of the relocation management services business of the Company and its
Subsidiaries and (z) current and deferred income taxes and other similar
liabilities, plus (ii) without duplicating any items included in Debt
pursuant to the foregoing clause (i), the maximum aggregate amount of all
liabilities of the Company or any of its Subsidiaries under any guaranty,
indemnity or similar undertaking given or assumed of, or in respect of, the
indebtedness, obligations or other liabilities, assets, revenues, income or
dividends of any Person other than the Company or one of its Subsidiaries
and (iii) all other obligations or liabilities of the Company or any of its
Subsidiaries in relation to the discharge of the obligations of any Person
other than the Company or one of its Subsidiaries.
"Lien" means any mortgage, pledge, lien, security interest or
encumbrance.
"Material U.S. Subsidiary" means any Subsidiary of the Company which
together with its Subsidiaries at the time of determination had assets
constituting 10% or more of Consolidated Assets, accounts for 10% or more
of Consolidated Net Worth, or accounts for 10% or more of the revenues of
the Company and its Consolidated Subsidiaries for the Rolling Period
immediately preceding the date of determination.
"Person" means any natural person, corporation, division of a
corporation, partnership, limited liability company, trust, joint venture,
association, company, estate, unincorporated organization or government or
any agency or political subdivision thereof.
"Revolving Lien" means any Lien which extends to property in
existence on the date of creation of such Lien and also to any property of
substantially the same characteristics subsequently acquired in the
ordinary course of business of the Company or a Material U.S. Subsidiary.
"Rolling Period" means, with respect to any fiscal quarter, such
fiscal quarter and the three immediately preceding fiscal quarters
considered as a single accounting period.
"Special Purpose Vehicle Subsidiary" shall mean PHH Caribbean
Leasing, Inc. and any subsidiary engaged in the fleet-leasing management
business which (i) is, at any one time, a party to one or more lease
agreements with only one lessee and (ii) finances, at any one time, its
investment in lease agreements on vehicles with only one lender, which
lender may be the Company.
SECTION 802. Limitation on Liens.
The Company shall not, and it shall not permit any Material U.S.
Subsidiary to, incur any Lien to secure Debt without equally and ratably
securing the Securities, except the following:
(a) deposits under worker's compensation, unemployment insurance and
social security laws or to secure statutory obligations or surety or appeal
bonds or performance or other similar bonds in the ordinary course of
business, or statutory liens of landlords, carriers, warehousemen,
mechanics and materialmen and other similar Liens, in respect of
liabilities which are not yet due or which are being contested in good
faith by appropriate proceedings, Liens for taxes not yet due and payable,
and Liens for taxes due and payable, the validity or amount of which is
currently being contested in good faith by appropriate proceedings and as
to which foreclosure and other enforcement proceedings shall not have been
commenced (unless fully bonded or otherwise effectively stayed);
(b) purchase money Liens granted to the vendor or Person financing
the acquisition of property, plant or equipment if (i) limited to the
specific assets acquired and, in the case of tangible assets, other
property which is an improvement to or is acquired for specific use in
connection with such acquired property or which is real property being
improved by such acquired property; and (ii) the debt secured by such Lien
is the unpaid balance of the acquisition cost of the specific assets on
which the Lien is granted.
(c) Liens and Revolving Liens upon real and/or personal property,
each of which Liens or Revolving Liens existed before the time of the
Company's acquisition of such property or the company owning such property
and was not created in anticipation thereof and any extensions or renewals
thereof; provided that no such Lien or Revolving Lien shall extend to or
cover any property of the Company or a Material U.S. Subsidiary other than
the respective property so acquired and improvements thereon;
(d) Liens and Revolving Liens upon real and/or personal property of
a Person who in connection with the Company's acquisition of the stock or
equity of such Person becomes a Material U.S. Subsidiary, each of which
Liens or Revolving Liens existed before the time of the Company's
acquisition of such Person and was not created in anticipation thereof and
any extension or renewal of such Liens; provided that no such Lien shall
extend to or cover any property of the Company or a Material U.S.
Subsidiary other than the Material U.S. Subsidiary (and its acquired
affiliates) so acquired;
(e) Liens arising out of attachments, judgments or awards as to
which an appeal or other appropriate proceedings for contest or review are
promptly commenced (and as to which foreclosure and other enforcement
proceedings (i) shall not have been commenced (unless fully bonded or
otherwise effectively stayed) or (ii) in any event shall be promptly fully
bonded or otherwise effectively stayed);
(f) Liens securing Debt of any Material U.S. Subsidiary to the
Company;
(g) Liens securing Debt and related obligations, or securing
interests in asset sale transactions which could alternatively be
characterized as Debt, or securing obligations to pay rent incurred in
connection with asset securitization transactions, which Debt or
securitized assets are not reported on the Company's consolidated balance
sheet or that of the Company's Material U.S. Subsidiaries, and which liens
cover only the assets securitized in the applicable asset securitization
transaction or other assets identified in connection with an asset
securitization transaction and liens on the stock or equity of any special
purpose vehicle the sole purpose of which is to effectuate such asset
securitization transaction;
(h) Liens securing Debt and related obligations of an Asset
Securitization Subsidiary issued in asset securitization transactions,
which Debt or securitized assets are reported on the Company's consolidated
balance sheet or that of the Company's Material U.S. Subsidiaries, and
which liens cover only the assets securitized in the applicable asset
securitization transaction or other assets identified in connection with an
asset securitization transaction, and liens on the stock of such Asset
Securitization Subsidiary;
(i) Liens covering only the property or other assets of any Special
Purpose Vehicle Subsidiary and securing only Debt of such Special Purpose
Vehicle Subsidiary;
(j) mortgage liens existing on homes acquired by the Company or any
of its Material U.S. Subsidiaries in the ordinary course of their
relocation management business;
(k) other Liens incidental to the conduct of the business of the
Company or its Subsidiaries or the ownership of their property and other
assets, which do not secure any Debt and did not otherwise arise in
connection with the borrowing of money or the obtaining of advances or
credit and which do not, in the aggregate, materially detract from the
value of the property or other assets of the Company or its Subsidiaries or
materially impair the use thereof in the operation of their businesses;
(l) Liens covering only the property or other assets of any
Subsidiary which principally transacts business outside of the United
States;
(m) Liens existing prior to the date of this Indenture and any
extensions or renewals thereof;
(n) Liens incurred in the ordinary course of business to secure Debt
utilized to fund net investments in leases and leased vehicles, equity
advances on homes and other assets under management programs; and
(o) Liens to secure Debt not otherwise permitted by any of the
clauses (a) through (k) if, at the time any such Liens are incurred, the
aggregate amount of Debt secured by such Liens does not exceed
$250,000,000.
SECTION 803. Intentionally Omitted
SECTION 804. Intentionally Omitted
SECTION 805. No Lien Created, etc.
This Indenture and the Securities do not create a Lien, charge or
encumbrance on any property of the Company or any Subsi A Debt or lease
obligation shall be counted only once even if more than one person is
responsible for the obligation.
SECTION 806. When Company May Merge, etc.
The Company shall not consolidate with or merge into, or transfer
all or substantially all of its assets to, another corporation unless the
resulting, surviving or transferee corporation assumes by supplemental
indenture all the obligations of the Company under the Securities and this
Indenture. Thereafter all such obligations of the predecessor corporation
shall terminate.
SECTION 807. When Securities Must Be Secured.
If upon any such consolidation, merger or transfer any property or
assets of the Company would become subject to an attaching Lien that
secures Debt, then before the consolidation, merger or transfer occurs, the
Company shall secure the Securities equally and ratably with or prior to
the Debt secured by the attaching Lien. However, the Company need not
comply with this Section if the Company could secure such Debt by a Lien on
the property of the Company without equally and ratably securing the
Securities.
SECTION 808. Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, shall
be provided an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or conveyance, and any such assumption,
complies with the provisions of this Article VIII.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, 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 corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; 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; provided, however, that in respect of any such additional
covenant, such supplemental indenture may provide for a particular period
of grace after default in the performance of such covenant (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default; or
(3) to add any additional Events of Default; or
(4) add to or change or eliminate any of the provisions of this
Indenture to extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities pursuant to the requirements of Sections
802 or 807 or otherwise; or
(7) to establish the form or terms of Securities of any series 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 which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series (each such
series voting as a separate class) 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 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 modify the manner of determination
of the rate of interest thereon so as to affect adversely the interest of
such Holder 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 any
Place of Payment where, or the coin or currency in which, any Security or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
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
(3) 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 with respect to changes in the references to the
"Trustee" and concomitant changes in this Section and Section 1006, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
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.
The Trustee may in its discretion determine whether or not any
Securities would be affected by any supplemental indenture and any such
determination shall he conclusive upon the Holders of all Securities of any
series. The Trustee shall not be liable for any such determination made in
good faith.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
provided, 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 and that such
supplemental indenture, when executed and delivered by the Company, will
constitute a valid and binding obligation of the Company in accordance with
its terms. 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 pursuant to the
provisions of this Article, this Indenture shall, with respect to such
series, be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the Holders
of Securities of the series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to
such modifications and amendments, and all the terms and conditions of any
such supplemental indenture, with respect to such series, shall be and be
deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
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 of 1939, as amended,
in effect on such date.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series, affected by a supplemental indenture,
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 Board of Directors, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee or any Authenticating Agent in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay
the principal of (and premium, if any) and interest, if any, on the
Securities of each series in accordance with the terms of the Securities of
such series and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will cause to be maintained in each Place of Payment for
any series of Securities 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. The Company
will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. With respect to the
Securities of any series such office or agency and each place of Payment
shall be as specified as contemplated in Section 301. In the absence of any
such provisions with respect to the Securities of any series (i) the place
of payment for such securities shall be the Borough of Manhattan, City of
New York, New York, and (ii) such office or agency in such Place of Payment
shall be the Corporate Trust Office of the Trustee therein. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, City of New
York, New York) where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such 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 premium, if any) or interest, if any, 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
premium, if any) or interest, if any, so becoming due until such sums shall
be paid to such persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal
of (and premium, if any) or interest, if any, on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest, if any, 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 so to
act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an
instrument in which such paying Agent shall agree with the 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
premium, if any) or interest, if any, 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 (and premium, if any) or interest, if any, 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. Upon the satisfaction and discharge
of the indebtedness in respect of all Outstanding Securities of any series
all sums then held by any Paying Agent (other than the Trustee) in respect
thereof shall, upon demand of the Company, be repaid to it or paid to the
Trustee, and thereupon such Paying Agent shall be released from all further
liability with respect to such money.
The Trustee and any Paying Agent shall promptly pay to the Company
upon Company Request any money or securities held by them at any time in
excess of amounts necessary to satisfy amounts payable to the Holders, the
Trustee and the Paying Agent.
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
premium, if any) or interest, if any, on any Security of any series and
remaining unclaimed for two years after such principal (and premium, if
any) or interest, if any, has become due and payable shall, unless
otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security 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
a newspaper published in the English language, customarily published on
each Business Day and of general circulation in each Place of Payment with
respect to Securities of such series, 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, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 1005. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, a
certificate of the principal executive officer, the principal financial
officer or the principal accounting officer (which need not comply with
Section 102), stating as to each signer thereof that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) as of the end of such year and at the date of the certificate to
the best of his knowledge, based on such review, (a) the Company is not in
default in the fulfillment of any of its obligations under this Indenture,
or specifying each such default known to him and the nature and status
thereof and (b) no event has occurred and is continuing which is or after
notice or lapse of time or both would become an Event of Default, or, if
such an event has occurred and is continuing, specifying each such event
known to him and the nature and status thereof.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 802 through 804 and Sections
1002 to 1005, each inclusive, with respect to the Securities of any series
if before the time for such compliance the Holders of at least 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 covenant or condition, but no such
waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee with respect
to any such covenant 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 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, but not less than 30 days, shall be satisfactory
to the Trustee), notify the Trustee in writing of such Redemption Date and
of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected by the Trustee not
more than 60 days prior to the Redemption Date, from the Outstanding
Securities of such series not previously called for redemption, by such
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 Securities of such series of a
denomination larger than the minimum authorized denomination for Securities
of that series. In any case where Securities of such series are registered
in the same name, the Trustee in its discretion may treat the aggregate
principal amount so registered as if it were represented by one Security of
such series. If the Securities of any series to be redeemed consist of
Securities having different Stated Maturities or different rates of
interest (or methods of computing interest), then the Company may, by
written notice to the Trustee, direct that the Securities of such series to
be redeemed shall be selected from among groups of such Securities having
specified Stated Maturities or rates of interest (or methods or computing
interest) and the Trustee shall thereafter select the particular Securities
to be redeemed in the manner set forth above from among the groups of such
Securities so specified.
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 Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state;
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price 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,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) 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. In the case of
redemptions by the Company of Global Securities, the Company shall, at
least 30 days prior to the Redemption Date, notify the Depositary (with a
copy to the Trustee) of such redemption.
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. Upon
surrender of any such Security for redemption in accordance with said
notice, 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 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 Regular Record Date according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (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 Security or
Securities of the same series, of any authorized denomination as requested
by such Xxxxxx, in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so surrendered;
provided, however, that the Depositary need not surrender Global Securities
for a partial redemption and may be authorized to make a notation on such
Global Security of such partial redemption. In the case of a partial
redemption of the Global Securities, the Depositary, and in turn, the
participants in the Depositary, shall have the responsibility to select any
Securities to be redeemed by random lot.
ARTICLE TWELVE
SINKING FUNDS
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 except as otherwise
specified as contemplated by 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." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 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 may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any series required to be
made pursuant to the terms of such Securities as provided for by the terms
of such series (1) deliver Outstanding Securities of such series (other
than any previously called for redemption) and (2) apply as a credit
Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such series of Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case, 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 payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202, and the amount of any
optional sinking fund payment to be added to the next ensuing sinking fund
payment, and will also deliver to the Trustee any Securities to be so
delivered. If such Officers' Certificate shall specify an optional amount
to be added in cash to the next ensuing mandatory sinking fund payment, the
Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 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.
* * *
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.
PHH CORPORATION
(SEAL) By: /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President - Law
& Corporate Secretary
Attest:
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
BANK ONE TRUST COMPANY, N.A.
(SEAL) By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
Attest:
By: /s/ Xxx Xxxxxxx
---------------------------------
