EXHIBIT 4
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CARLISLE COMPANIES INCORPORATED
TO
Fleet National Bank
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INDENTURE
Dated as of January 15, 1997
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Reconciliation and tie between Indenture, dated as of January 15, 1997 and the
Trust Indenture Act of 1939, as amended ("TIA").
Indenture
TIA Section Section
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310(a)(1)............................................ 609
(a)(2)........................................... 609
(a)(3)........................................... TIA
(a)(4)........................................... Not Applicable
(a)(5)........................................... TIA
(b).............................................. 610; TIA
311(a)............................................... 613; TIA
(b).............................................. 613; TIA
(c).............................................. Not Applicable
312(a)............................................... 701
(b).............................................. 702; TIA
(c).............................................. 702(c); TIA
313(a)............................................... 703; TIA
(b).............................................. 703; TIA
(c).............................................. 703; TIA
(d).............................................. 703; TIA
314(a)............................................... 704; TIA
(b).............................................. Not Applicable
(c)(1)........................................... 102
(c)(2)........................................... 102
(c)(3)........................................... Not Applicable
(d).............................................. Not Applicable
(e).............................................. 102
315(a)............................................... 601; 603; TIA
(b).............................................. 602; TIA
(c).............................................. TIA
(d)(1)........................................... TIA
(d)(2)........................................... 603; TIA
(d)(3)........................................... 603; TIA
(e).............................................. TIA
316(a)(1)(A)......................................... 502; 512
(a)(1)(B)........................................ 513
316(a)(last sentence)........................Definition of Outstanding
(b).............................................. 507; 508
(c).............................................. 503
317(a)(1)............................................ 504
(a)(2)........................................... TIA
(b).............................................. 1003
318(a)............................................... 108
(b).............................................. TIA
(c).............................................. 108; TIA
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This reconciliation and tie section does not constitute part of the
Indenture.
TABLE OF CONTENTS
PAGE
PARTIES.............................................................. 1
RECITALS............................................................. 1
Authorization of Indenture..................................... 1
Compliance with Legal Requirements............................. 1
ARTICLE ONE Definitions and Other Provisions of General Application
Section 101. Definitions............................................1
Affiliate...........................................................2
Attributable Debt...................................................2
Authenticating Agent................................................2
Authorized Newspaper................................................2
Bearer Security.....................................................2
Board of Directors..................................................2
Board Resolution....................................................2
Business Day........................................................2
Capital Stock.......................................................3
Closing Price Per Share.............................................3
Commission..........................................................3
Company.............................................................3
Company Order.......................................................3
Consolidated Net Tangible Assets....................................3
Conversion Date.....................................................3
Conversion Event....................................................3
Corporate Trust Office..............................................4
Corporation.........................................................4
Coupon..............................................................4
Currency............................................................4
Debt................................................................4
Defaulted Interest..................................................4
Depositary..........................................................4
Dollar or U.S. Dollar or $..........................................4
Dollar Equivalent of the Currency Unit..............................4
Dollar Equivalent of the Foreign Currency...........................5
ECU.................................................................5
Election Date.......................................................5
Euroclear...........................................................5
European Communities................................................5
European Monetary System............................................5
Event of Default....................................................5
Exchange Rate Agent.................................................5
Exchange Rate Officer's Certificate.................................5
Foreign Currency....................................................5
Funded Debt.........................................................5
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
i
Global Security.....................................................5
Government Obligations..............................................5
Holder..............................................................5
Indenture...........................................................6
interest............................................................6
Interest Payment Date...............................................6
Market Exchange Rate................................................6
Maturity............................................................6
NYSE................................................................7
Officers' Certificate...............................................7
Opinion of Counsel..................................................7
Original Issue Date.................................................7
Original Issue Discount Security....................................7
Outstanding.........................................................7
Overdue Rate........................................................8
Paying Agent........................................................8
Person..............................................................8
Predecessor Security................................................8
Principal Property..................................................8
Record Date.........................................................9
Redemption Date.....................................................9
Redemption Price....................................................9
Registered Holder...................................................9
Registered Security.................................................9
Responsible Officer.................................................9
Securities......................................................... 9
Security Register and Security Registrar............................9
Senior Indebtedness.................................................9
Senior Securities...................................................9
Significant Subsidiary..............................................9
Special Record Date................................................10
Stated Maturity....................................................10
Subordinated Securities............................................10
Subsidiary.........................................................10
Trading Day........................................................10
Trust Indenture Act................................................10
Trustee............................................................10
Vice President.....................................................10
Yield to Maturity..................................................10
Section 102. Compliance Certificates and Opinions..................11
Section 103. Form of Documents Delivered to Trustee................11
Section 104. Acts of Holders; Record Dates.........................12
Section 105. Notices, Etc., to Trustee and Company.................13
Section 106. Notice to Holders; Waiver.............................14
Section 107. Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability...........15
Section 108. Conflict with Trust Indenture Act.....................15
Section 109. Effect of Headings and Table of Contents..............15
Section 110. Successors and Assigns................................15
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
Section 111. Separability Clause...................................15
Section 112. Benefits of Indenture.................................15
Section 113. Governing Law.........................................16
Section 114. Legal Holidays........................................16
Section 115. Counterparts..........................................16
ARTICLE TWO Security Forms
Section 201. Forms Generally.......................................17
Section 202. Form of Trustee's Certificate of Authentication.......17
Section 203. Additional Provisions Required in Global Security.....17
ARTICLE THREE The Securities
Section 301. Amount Unlimited; Issuable in Series...................18
Section 302. Denominations..........................................21
Section 303. Execution, Authentication, Delivery and Dating of
Securities.............................................21
Section 304. Temporary Securities...................................24
Section 305. Registration, Registration of Transfer and Exchange....24
Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities.............................................27
Section 307. Payment of Interest; Interest Rights Preserved.........28
Section 308. Persons Deemed Owners..................................30
Section 309. Cancellation...........................................30
Section 310. Computation of Interest................................31
Section 311. Currency and Manner of Payments in Respect of
Securities.............................................31
Section 312. Appointment and Resignation of Successor Exchange
Rate Agent.............................................34
Section 313. Compliance with Certain Laws and Regulations...........35
ARTICLE FOUR Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture................35
Section 402. Application of Trust Money.............................36
ARTICLE FIVE Remedies
Section 501. Events of Default......................................37
Section 502. Acceleration of Maturity; Rescission and Annulment.....38
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................39
Section 504. Trustee May File Proofs of Claim.......................41
Section 505. Trustee May Enforce Claims Without Possession of
Securities.............................................42
Section 506. Application of Moneys Collected by Trustee.............42
Section 507. Limitation on Suits....................................43
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iii
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...................................44
Section 509. Restoration of Rights and Remedies.....................44
Section 510. Rights and Remedies Cumulative.........................44
Section 511. Delay or Omission Not Waiver...........................44
Section 512. Control by Holders.....................................45
Section 513. Waiver of Past Defaults................................45
Section 514. Undertaking for Costs..................................46
Section 515. Waiver of Stay or Extension Laws.......................46
ARTICLE SIX The Trustee
Section 601. Certain Duties and Responsibilities....................46
Section 602. Notice of Defaults.....................................47
Section 603. Certain Rights of the Trustee..........................48
Section 604. Not Responsible for Recitals or Issuance of Securities.49
Section 605. May Hold Securities....................................49
Section 606. Money Held in Trust....................................49
Section 607. Compensation and Reimbursement.........................49
Section 608. Right to Rely on Officers' Certificate.................50
Section 609. Eligibility............................................51
Section 610. Resignation and Removal; Appointment of Successor......51
Section 611. Acceptance of Appointment by Successor.................53
Section 612. Merger, Conversion, Consolidation or Succession
to Business............................................54
Section 613. Preferential Collection of Claims Against Company......54
Section 614. Appointment of Authenticating Agent....................55
ARTICLE SEVEN Holders' List and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders................................................56
Section 702. Preservation of Information; Communications to
Holders................................................57
Section 703. Reports by Trustee.....................................57
Section 704. Reports by Company.....................................58
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms...58
Section 802. Successor Substituted..................................59
Section 803. Senior Securities to Be Secured in Certain Events......59
ARTICLE NINE Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.....60
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iv
Section 902. Supplemental Indentures with Consent of Holders........61
Section 903. Execution of Supplemental Indentures...................62
Section 904. Effect of Supplemental Indentures......................62
Section 905. Conformity with Trust Indenture Act....................63
Section 906. Reference in Securities to Supplemental Indentures.....63
ARTICLE TEN Covenants
Section 1001. Payment of Principal, Premium and Interest............63
Section 1002. Maintenance of Office or Agency.......................63
Section 1003. Money for Securities Payments to Be Held in Trust.....64
Section 1004. Limitations on Secured Debt...........................65
Section 1005. Limitations on Sales and Leasebacks...................66
Section 1006. Certificate of Compliance.............................66
Section 1007. Waiver of Certain Covenants...........................67
ARTICLE ELEVEN Redemption of Securities
Section 1101. Applicability of Article..............................67
Section 1102. Election to Redeem; Notice to Trustee.................67
Section 1103. Selection by Trustee of Securities to Be Redeemed.....68
Section 1104. Notice of Redemption..................................68
Section 1105. Deposit of Redemption Price...........................69
Section 1106. Securities Payable on Redemption Date.................69
Section 1107. Securities Redeemed in Part...........................70
ARTICLE TWELVE Sinking Funds
Section 1201. Applicability of Article..............................70
Section 1202. Satisfaction of Sinking Fund Payments with Securities.70
Section 1203. Redemption of Securities for Sinking Fund.............71
ARTICLE THIRTEEN Defeasance
Section 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.....................71
Section 1302. Defeasance and Discharge..............................72
Section 1303. Covenant Defeasance...................................72
Section 1304. Conditions to Defeasance or Covenant Defeasance.......72
Section 1305. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions..............74
Section 1306. Reinstatement.........................................75
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
v
ARTICLE FOURTEEN Subordination
Section 1401. Agreement to Subordinate..............................75
Section 1402. Payments to Holders of Subordinated Securities........76
Section 1403. No Payment When Senior Debt in Default................77
Section 1404. Subrogation...........................................78
Section 1405. Authorization by Holders of Subordinated Securities...79
Section 1406. Notice to Trustee.....................................80
Section 1407. Trustee's Relation to Senior Indebtedness.............81
Section 1408. No Impairment of Subordination........................81
Section 1409. Trust Moneys Not Subordinated.........................81
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
vi
THIS INDENTURE, dated as of January 15, 1997 between Carlisle
Companies Incorporated, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, and Fleet
National Bank, a national banking association, organized under the laws of the
United States (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
debentures, notes or other evidences of indebtedness, (as such term is
hereinafter defined) of the Company (such debentures, notes or other evidences
of indebtedness herein called the "Securities") to be issued in one or more
series as in this Indenture provided. The Securities may either be senior (the
"Senior Securities") or subordinated (the "Subordinated Securities").
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 agreed for the equal and proportionate
benefit of all Holders of the Securities of any series, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture and of any indenture supplemental
hereto, 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 or by Commission rule under 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 United States generally
accepted accounting principles; 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 Six, are defined in that
article.
"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.
"Attributable Debt" means, as to any particular lease under which
any Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining primary term thereof, discounted
from the respective due dates thereof to such date at the rate of interest per
annum implicit in the terms of such lease, as determined in good faith by the
Company, compounded semi-annually. The net amount of rent required to be paid
under any such lease for any such period shall be the amount of the rent payable
by the lessee with respect to such period, after excluding amounts required to
be paid on account of maintenance, repairs, insurance, taxes, assessments, water
rates and similar charges. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but shall not include any rent required to be paid under
such lease subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper of general circulation, in
the official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security issued under this Indenture
which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board or any directors and/or
officers of the Company to whom that board or committee shall have duly
delegated its authority.
"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" means, except as may otherwise be provided herein or
in any Security, when used with respect to a location, each Monday, Tuesday,
Wednesday,
2
Thursday and Friday which is not a day on which banking institutions in that
location are authorized or obligated by law or executive order to close.
"Capital Stock" means any stock of any class of the Company.
"Closing Price Per Share" means, with respect to the Capital Stock
of the Company, for any day the last reported sales price per share (i) on the
New York Stock Exchange, Inc. as reported in the Wall Street Journal (or other
similar newspaper) for New York Stock Exchange Composite Transactions (or, if no
such sale is so reported on such day, the average of such reported closing bid
and asked prices regular way) or, if the Capital Stock is not listed or admitted
to trading on such Exchange, on the principal (as determined by the Company's
Board of Directors) national securities exchange on which the Capital Stock is
listed or admitted to trading or, (ii) if not listed or admitted to trading on
any national securities exchange, on the National Association of Securities
Dealers Automated Quotations National Market System; or if the Capital Stock is
not listed or admitted to trading on any national securities exchange or quoted
on such National Market System, the average of the closing bid and asked prices
in the over-the-counter market as furnished by any New York Stock Exchange
member firm selected from time to time by the Company for that purpose.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" and "Company Request" mean, respectively, a written
order or request signed in the name of the Company by both (i) its Chairman of
the Board of Directors, its Vice Chairman of the Board of Directors, its
President or a Vice President, and (ii) its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities (excluding any thereof
constituting Funded Debt by reason of being renewable or extendable) and (ii)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the balance sheet of the
Company and its consolidated Subsidiaries as of the end of the most recent
calendar quarter and computed in accordance with generally accepted accounting
principles.
"Conversion Date" has the meaning specified in Section 311(d).
"Conversion Event" means the cessation of use of (a) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank
3
or other public institutions of or within the international banking community
for the settlement of transactions, (b) the ECU both within the European
Monetary System and for the settlement of transactions by public institutions of
or within the European Communities or (c) any currency unit (or composit
currency) other than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee specified
in Section 105 hereof or such other address as to which the Trustee may give
notice to the Company.
"Corporation" includes corporations, associations, companies,
joint-stock companies, limited liability companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, currency unit or units
or composite currency or currencies, including, without limitation, the ECU,
issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"Debt" means any notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" and "covenant defeasance" have the respective meanings
specified in Sections 1302 and 1303.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary 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 such series shall mean the Depositary with respect to the
Securities of that series.
"Designated Senior Debt" means any obligation for Senior
Indebtedness of the Company, the principal amount of which is $20,000,000 or
more at the date of determination, and that is specifically designated by the
Company in the Instrument evidencing or governing such Senior Indebtedness and
in a written instrument delivered to the Trustee as "Designated Senior Debt" for
purposes of the Indenture.
"Dollar" or "U.S. Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States of America as at the time
shall be legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified
in Section 311(g).
4
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 311(f).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 311(h).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate Agent", with respect to Securities of or within any
series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant to
Section 301 or Section 312.
"Exchange Rate Officer's Certificate" means a tested telex or a
certificate setting forth (a) the applicable Market Exchange Rate and (b) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by the Treasurer, any Vice President or
any Assistant Treasurer of the Company.
"Foreign Currency" means any Currency other than the U.S. Dollar.
"Funded Debt" means all Debt having a maturity of more than 12
months from the date as of which the amount thereof is to be determined or
having a maturity of less than 12 months but by its terms being renewable or
extendable beyond 12 months from such date at the option of the borrower.
"Global Security" means a Security bearing the legend prescribed in
Section 203 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or nominee.
"Government Obligations" has the meaning specified in Section 1304.
"Holder" means, with respect to a Registered Security, a Person in
whose name a Security is registered in the Security Register and, with respect
to a Bearer Security, a bearer thereof or of a Coupon appertaining thereto.
5
"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,
including, for all purposes of this instrument, and any such supplemental
indenture, the mandatory provisions of the Trust Indenture Act that are deemed
to be a part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated in Section 301.
"interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at Maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise, and, when used with respect
to an Original Issue Discount Security which by its terms bears interest only
after Maturity, interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an instalment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (a) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (b) for any conversion of Dollars
into any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (c) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (a), (b) and (c), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or any other principal
market for such Currency in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an instalment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption, pursuant to a sinking fund
or otherwise.
"Mortgage" has the meaning specified in Section 1004.
"Nonrecourse Obligation" means Debt or lease payment obligations
substantially related to (i) the acquisition of assets not currently owned by
the Company or any of its significant subsidiaries or (ii) the financing or the
construction of or improvements to equipment or facilities involving the
development of properties of the
6
Company or any of its Significant Subsidiaries, as to which the obligee with
respect to such indebtedness or obligation has no recourse to the general
corporate funds or the assets, in general, of the Company or any of its
Significant Subsidiaries.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means a certificate signed by both (a) the
Chairman of the Board of Directors, a Vice Chairman of the Board of Directors,
the President or a Vice President and (b) the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such Officers' Certificate shall include the statements required
by Section 102 hereunder.
"Opinion of Counsel" means a written opinion of counsel who shall be
acceptable to the Trustee, who may be an employee of or counsel for the Company,
and which opinion complies with the requirements of Section 102.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of a Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"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, except as
otherwise required by the Trust Indenture Act as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) 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 and of any Coupons;
PROVIDED, HOWEVER, that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any series have taken any
action (including the
7
making of any request, demand, authorization or direction), the giving of any
notice, consent or waiver (or the taking of any other action) hereunder and in
determining voting rights of any Holder of a Security hereunder (i) the
principal amount of Original Issue Discount Securities that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 and
(ii) the principal amount of any Security, the principal amount of which is
denominated in a Specified Currency, shall be deemed to be that amount as
determined in accordance with Section 311 (or, in the case of any Original Issue
Discount Security, the amount determined in accordance with clause (i) above as
well as Section 311), and (iii) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, 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 any such other obligor. In case of a dispute as to such right,
the advice of counsel shall be full protection in respect of any decision made
by the Trustee in accordance with such advice.
"Overdue Rate" means, unless otherwise specified in the Securities
of any series, the same rate as the rate of interest specified in the Securities
of such series or, in the case of a series of Original Issue Discount
Securities, the Yield to Maturity of such series of Securities.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"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 exchange for or 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.
"Principal Property" means any real property, manufacturing plant,
warehouse or other physical facility and related fixtures and improvements,
located in the United States of America (excluding the territories and
possessions of the United States of America) and owned by the Company or any
Subsidiary, in each case the gross book value (without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Tangible Assets, other than any such
facility or portion thereof which the Board of Directors of the Company declares
by resolution is not of material importance to the total business conducted by
the Company and its Subsidiaries as an entirety.
8
"Proceeding" has the meaning specified in Section 1402.
"Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified as such in the terms of
the Securities of such series, or, if no such date is so specified, if such
Interest Payment Date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such Interest Payment Date is the
fifteenth day of a calendar month, the last day of the preceding calendar month,
whether or not such Record Date is a Business Day.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Holder" means the Holder of a Registered Security.
"Registered Security" means any Security issued under this Indenture
which is registered as to principal and interest in the Security Register.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Bearer Security, including any Coupon
appertaining thereto, or any Registered Security authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means all Debt of the Company including
principal and interest (and premium, if any) (including, without limitation, any
interest that would accrue but for the occurrence of any event specified in
Section 501(6) or (7) hereunder) on such Debt, created, incurred or assumed on
or after the date of the first issuance of any Subordinated Securities, except
(i) existing Subordinated Securities, (ii) such indebtedness as is by its terms
expressly stated to be junior in right of payment to Subordinated Securities,
and (iii) such indebtedness as is by its terms expressly stated to rank pari
passu with, the Subordinated Securities.
"Senior Securities" has the meaning stated in the first recital of
this Indenture.
"Significant Subsidiary" means any Subsidiary of the Company which
owns a Principal Property, any Subsidiary which accounts for 10% or more of the
consolidated annual net sales or total assets of the Company at the end of the
most recently completed fiscal year and any Subsidiary which owns directly or
indirectly stock
9
of a Significant Subsidiary.
"Special Record Date" has the meaning specified in Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment 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
instalment of principal or interest is due and payable.
"Subordinated Securities" has the meaning stated in the first
recital of this Indenture.
"Subordinated Securities Payment" has the meaning specified in
Section 1402.
"Subsidiary" means a corporation whose accounts are consolidated
with those of the Company in accordance with generally accepted accounting
principles.
"Trading Day" means, with respect to the Capital Stock, so long as
the Capital Stock is listed or admitted to trading on the NYSE, a day on which
the NYSE is open for the transaction of business, or, if the capital Stock is
not listed or admitted to trading on the NYSE, a day on which the principal
national securities exchange on which the Capital Stock is listed is open for
the transaction of business, or, if the Capital Stock is not so listed or
admitted for trading on any national securities exchange, a day on which NASDAQ
is open for the transaction of business.
"Trust Indenture Act" (except as otherwise provided in Section 905)
means the Trust Indenture Act of 1939, as amended, as in force at the date as of
which this instrument was executed; PROVIDED, HOWEVER, that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"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 of "vice president".
"Yield to Maturity" means, in the case of any Original Issue
Discount Security, the yield to maturity specified in such Security or in a
Board Resolution relating thereto.
10
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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by any officer of the Company, or Opinion
of Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
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 covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
11
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
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; Record Dates.
(a) Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Securities of any
series may take any action (including the making of any demand or request, the
giving of any notice, consent or waiver or the taking of any other action), the
fact that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (1) by any instrument or any
number of instruments of similar tenor executed by such Holders in person or by
agent or proxy appointed in writing, or (2) by the record of such Holders of
Securities voting in favor thereof at any meeting of such Holders duly called
and held, or (3) by a combination of such instrument or instruments and any such
record of such a meeting of such Holders; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments and/or such record are delivered to the Trustee and, where it is
expressly required, to the Company. Proof of execution of any instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to the requirements of the Trust Indenture Act
and Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section 104.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) Subject to the requirements of the Trust Indenture Act and
Sections 601 and 603, proof of the execution of any instrument by a Holder or
his agent or proxy shall be sufficient if made in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee.
(c) If the Company shall solicit from the Registered Holders any
demand, request, notice, consent, waiver or the taking of any other action, the
Company may, at its option, by a Board Resolution, fix in advance a record date
for the determination of Registered Holders entitled to give such demand,
request, notice, consent or waiver or to take such other action, but the Company
shall have no obligation to do so. If such a record date is fixed, such demand,
request, notice, consent, waiver or other action may be given before or after
the record date, but only the Registered Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite percentage of Securities
Outstanding have authorized or agreed or consented to such demand, request,
notice, consent, waiver or taking of any other action, and for that purpose the
Securities Outstanding shall be computed as of the record date; PROVIDED,
HOWEVER, that no such
12
demand, request, notice, consent, waiver or taking of any other action by the
Holders on the record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the Record Date.
(d) The ownership of Registered Securities shall be proved by the
Security Register or by a certificate of the Person designated by the Company to
keep the Security Register and to act as repository in accordance with the
provisions of Section 305.
(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, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(f) At any time prior to (but not after) the evidencing to the
Trustee of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action, any Holder
of a Security the serial number or other distinguishing symbol of which is shown
by the evidence to be included among the serial numbers or other distinguishing
symbols of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at Fleet National Bank, Corporate Trust
Administration Department, 000 Xxxx Xxxxxx (CT/MO/0238), Xxxxxxxx, XX
00000, Attention: Xxxxxxx Xxxxxxxx, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
13
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
(i) if any of the Securities affected by such event are Registered Securities,
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 (if any), and not earlier than the earliest date
(if any) prescribed for the giving of such notice, and, (ii) if any of the
Securities affected by such event are Bearer Securities, notice to the Holders
thereof shall be sufficiently given (unless otherwise herein or in the terms of
such Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated in Section 301.
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. In any case where notice is given to Holders by publication,
neither the failure to publish such notice, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders.
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. Notwithstanding anything to the contrary elsewhere in
this Indenture as to the giving of notice, any other form of written notice is
sufficient, if received.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give any 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. If it is
impossible or, in the opinion of the Trustee, impracticable to give any notice
by publication in the manner herein required, then such publication in lieu
thereof as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
14
Section 107. Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability.
To the extent permitted by law, no recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
Section 108. Conflict with Trust Indenture Act.
This Indenture is subject to the provisions of the Trust Indenture
Act that are required to be a part of this Indenture and shall, to the extent
applicable, be governed by such provisions. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under such Act to be a part of and govern this Indenture, the provision
of the Trust Indenture Act shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
Section 109. 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 110. 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 111. Separability Clause.
In case any provision in 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
15
Section 113. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to conflict
of law principles thereof.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Security shall not be a Business Day at the place of
payment, then (notwithstanding any other provision on this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day in such place with the
same force and effect as if made on such Interest Payment Date or Redemption
Date or at the Stated Maturity or Maturity; PROVIDED, HOWEVER, that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. Counterparts.
This Indenture 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.
ARTICLE TWO
Security Forms
16
Section 201. Forms Generally.
The Securities of each series and any Coupons to be attached thereto
shall be substantially in such form as shall be established by a Board
Resolution or pursuant to authority granted by 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 imprinted or otherwise reproduced
thereon such letters, numbers or other marks of identification and such legends
or endorsements placed thereon as may be required to comply with any applicable
law, rule or regulation or with the rules of any securities exchange or as may,
consistent with the provisions of this Indenture, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
Temporary Securities of any series may be issued as permitted by Section 304. If
the form of Securities or Coupons of any series is established by action taken
pursuant to authority granted by a Board Resolution, a copy of an appropriate
record of any such action taken pursuant thereto, including a copy or the
approved form of Securities or Coupons, shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated in Section 303 for the
authentication and delivery of such Securities. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security.
Unless otherwise specified as contemplated in Section 301, Bearer
Securities shall have Coupons attached.
The definitive Securities and Coupons shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities and Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall
be in substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Fleet National Bank,
as Trustee
By______________________
Authorized Officer
Section 203. Additional Provisions Required in Global Security.
Any Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
17
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be transferred to,
or registered or exchanged for Securities registered in the name of, any
Person other than the Depositary or a nominee thereof and no such transfer
may be registered, except in the limited circumstances described in the
Indenture. Every Security authenticated and delivered upon registration or
transfer of, or in exchange for or in lieu of, this Security shall be a
Global Security subject to the foregoing, except in such limited
circumstances."
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in a Board Resolution or pursuant to authority granted by a Board
Resolution, a copy of which, certified by the Secretary or an assistant or
attesting Secretary of the Company, shall be delivered to the Trustee, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of a particular series, the following:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from 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
and except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(3) the manner in which or the Person to whom any interest on a
Registered Security of the series shall be payable, if other than the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Record Date for
such interest;
(4) the date or dates on which the principal of the Securities of
the series is payable or the method by which such date or dates may be
determined;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates
(including the Overdue Rate) shall be determined, the date or dates from
which such interest shall accrue or the method by which such date or dates
may be determined, the Interest
18
Payment Dates on which such interest shall be payable and the Record Dates
for the determination of Holders to whom interest is payable;
(6) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which such Debt Securities shall be issued;
(7) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(8) the period or periods within which, the price or prices at
which, the Currency in which and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option;
(9) the obligation, if any, of the Company to redeem, purchase or
repay 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, the Currency in which, and
other terms and conditions upon which Securities of the series shall be
redeemed, repurchased or repaid, in whole or in part, pursuant to such
obligation;
(10) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may
be repaid, in whole or in part, at the option of the Holder thereof;
(11) if other than Dollars, the Foreign Currency in which payment of
the principal of (and premium, if any, on) or interest, if any, on the
Securities of the series shall be payable or in which the Securities of
the series shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 311;
(12) if the principal of, and any premium and interest on, the
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Securities
are stated to be payable, the period or periods within which (including
the Election Date), and the terms and conditions upon which, such election
may be made;
(13) if the amount of payments of principal of, and any premium and
interest on, the Securities of the series may be determined with reference
to an index, formula or other method, the manner in which such amounts
shall be determined;
(14) the applicability, if any, of Section 1302 or Section 1303 to
the Securities of such series, or such other means of defeasance or
covenant defeasance as may be specified for the Securities of such series,
and whether, for the purpose of such defeasance or covenant defeasance,
the term "Government Obligations" shall include obligations referred to in
the definition of such term which are not obligations of the United States
of America or an agency or instrumentality of the United States of
America;
19
(15) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denominations in which any Bearer Securities of the series may be
issuable;
(16) 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 or provable in bankruptcy pursuant to Section 504;
(17) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(18) whether Securities of the series shall be issuable as
Registered Securities or Bearer Securities (with or without Coupons), or
both, and any restrictions applicable to the offering, sale or delivery of
Bearer Securities and, if other than as provided in Section 305, the terms
upon which Bearer Securities of a series may be exchanged for Registered
Securities of the same series and vice versa;
(19) the date as of which any Bearer Securities of the series and
any temporary Global Security representing Outstanding Securities of the
series shall be dated if other than the original issue date of the first
Security of the series to be issued;
(20) the forms of the Securities and Coupons, if any, of the
series;
(21) if and as applicable, that the Securities of the series shall
be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such
Global Security or Global Securities and any circumstances other than
those set forth in Section 305 in which any such Global Security may be
transferred to, and registered and exchanged for Registered Securities in
the name of, a Person other than the Depositary for such Global Security
or nominee thereof, and in which any such transfer may be registered, or,
if other than as provided in Section 305, the circumstances under which
any exchange may occur;
(22) with respect to such series of Securities, the "stated
intervals" and the method of determining the "record date" for purposes of
sections 312(a) and 316(c), respectively, of the Trust Indenture Act;
(23) whether the Securities of such series shall be subordinated and
subject in right of payment to the prior payment in full of all Senior
Indebtedness as set forth in Article Fourteen hereunder; and
(24) the provision for any sinking fund or analagous payments;
(25) any addition to, or modification or deletion of, any Event of
Default or any covenant of the Company specified in the Indenture with
respect to
20
such Debt Securities;
(26) any other terms of the series which are not inconsistent with
this Indenture.
All Securities of any one series shall be substantially identical
except as to denomination, interest rate and maturity and except as may
otherwise be provided in or pursuant to such Board Resolution or in any such
indenture supplemental hereto. The applicable Board Resolution or the applicable
supplemental indenture may provide that Securities of any particular series may
be issued at various times, with different Maturities and redemption and
repayment provisions (if any) and bearing interest at different rates, but shall
for all purposes under this Indenture, including, but not limited to, voting and
Events of Default, be treated as Securities of a single series.
Section 302. Denominations.
In the absence of any specification as contemplated in Section 301
with respect to the Securities of any series, any Securities of a series shall
be issuable in denominations of U.S. $1,000 (or, if such Securities are
denominated in a currency other than United States dollars or in a composite
currency, 1,000 units of such other currency or composite currency) and any
integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Company who execute such Securities may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Section 303. Execution, Authentication, Delivery and Dating of Securities.
The Securities shall be signed on behalf of the Company by its
Chairman of the Board of Directors, its Vice Chairman of the Board of Directors,
its President or any of its Vice Presidents, under its corporate seal which may,
but need not, be attested by its Secretary or any of its Assistant Secretaries.
Such signatures may be the manual or facsimile signatures of such officers. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to
21
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee, in accordance
with the Company Order, shall thereupon authenticate and deliver such Securities
without any further action by the Company. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities the Trustee shall be entitled to receive, and (subject to the
requirements of the Trust Indenture Act) shall be fully protected in relying
upon:
(1) a copy of any Board Resolution or Board Resolutions relating to
such series and, if applicable, an appropriate record of any action taken
pursuant to such Board Resolutions as prescribed in Sections 201 and 301;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 201 and 301, respectively, and
prepared in accordance with the requirements of the Trust Indenture Act
and Section 103; and
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act and Section 103, which shall state
that:
(a) if the form of such Securities has been established
by a Board Resolution or pursuant to authority granted by a Board
Resolution as permitted by Section 201, such form has been
established in conformity with the provisions of this Indenture;
(b) the terms of such Securities have been established
by a Board Resolution or pursuant to authority granted by a Board
Resolution as permitted by Section 301 in conformity with the
provisions of this Indenture;
(c) such Securities, when issued by the Company and
authenticated and delivered by the Trustee in the manner and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors' rights generally and to
general principles of equity;
(d) that the issuance of such Securities will not
conflict with or result in a breach of the terms or provisions of
the certificate of incorporation or bylaws of the Company, or any
indenture, mortgage or other agreement known to such counsel by
which the Company is bound;
(e) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities and of such
supplemental indenture, if any, have been complied with and the
authentication and delivery of such Securities by the Trustee and
the execution and delivery of such supplemental indenture, if any,
by the
22
Trustee will not violate the terms of this Indenture; and
(f) that the Company has the corporate power to issue
such Securities, and has taken all necessary corporate action with
respect to such issuance.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Company or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would adversely affect the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; PROVIDED, HOWEVER, that the Trustee, upon the request of the
Company, will resign as Trustee with respect to Securities of any series as to
which such a determination is made, prior to the issuance of such Securities,
and will comply with the request of the Company to execute and deliver a
supplemental indenture appointing a successor Trustee pursuant to Section 901.
Notwithstanding the provisions of Section 301 and this Section 303,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate, Opinion of Counsel
and Company Order otherwise required pursuant to this Section 303 at or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date, and shall be payable on the dates, in each
case, which shall be specified as contemplated in Section 301.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
23
Section 304. Temporary Securities.
Pending the preparation of definitive Securities for any series, the
Company may execute, and upon a Company Order the Trustee shall authenticate and
deliver, temporary Securities for such series printed, lithographed, typewritten
or otherwise produced. Temporary Securities of any series shall be issuable,
with or without coupons, in any authorized denomination, and substantially of
the tenor or form of the definitive Securities of such series in lieu of which
they are issued but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities in lieu of which they are
issued. Without unreasonable delay the Company shall execute and shall furnish
definitive Securities of such series and thereupon temporary Securities of such
series may be surrendered (together with any unmatured Coupons) in exchange
therefor without charge at each office or agency to be maintained by the Company
for that purpose pursuant to Section 1002, and the Trustee shall authenticate
and deliver in exchange for such temporary Securities of such series a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations having the same interest rate, Maturity and redemption
and repayment provisions and bearing interest from the same date as such
temporary Securities; PROVIDED, HOWEVER, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
PROVIDED, FURTHER, that no definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security unless the Trustee shall have received
from the Person entitled to receive the definitive Bearer Security a certificate
substantially in the form approved in the Board Resolutions relating thereto and
such delivery shall occur only outside the United States of America. Until so
exchanged, the temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of the same series
authenticated and delivered hereunder.
Section 305. Registration, Registration of Transfer and Exchange.
The Company will keep, either at the office or agency designated and
maintained by the Company for such purpose in the Borough of Manhattan, The City
of New York, in accordance with the provisions of Section 1002, or at any of
such other offices or agencies as may be designated and maintained in accordance
with the provisions of Section 1002, a register or registers in which, subject
to such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Registered Securities of a series. Each such register
is sometimes herein referred to as a "Security Register". Each Security Register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all normal business
hours such Security Register shall be open for inspection by the Trustee and any
Security Registrar.
Upon surrender for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 1002, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Registered Securities of the
24
same series and of like tenor in any authorized denomination for a like
aggregate principal amount and having the same interest rate, Maturity,
repayment and redemption provisions.
Bearer Securities (except for any temporary global Bearer
Securities) or any Coupons appertaining thereto (except for Coupons attached to
any temporary global Bearer Security) shall be transferable by delivery.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series and of like
tenor in other authorized denominations, in an equal aggregate principal amount
and having the same interest rate, Maturity, repayment and redemption
provisions. Registered Securities of any series to be exchanged shall be
surrendered at any office or agency to be maintained by the Company for the
purpose as provided in Section 1002, and the Company shall execute, and the
Trustee shall authenticate and deliver, in exchange therefor the Registered
Securities of the same series and having the same interest rate and Maturity
which the Holder making the exchange shall be entitled to receive, bearing
numbers or other distinguishing symbols not contemporaneously outstanding. Each
Person designated by the Company pursuant to the provisions of Section 1002 as a
Person authorized to register and register transfer of the Registered Security
is sometimes herein referred to as a "Security Registrar".
Unless otherwise specified as contemplated in Section 301, at the
option of the Holder, Bearer Securities of such series may be exchanged for
Registered Securities (if the Securities of such series are issuable in
registered form) or Bearer Securities (if Bearer Securities of such series are
issuable in more than one denomination and such exchanges are permitted by such
series) of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured Coupons and all
matured Coupons in default. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or matured Coupon in default, such exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company and the Trustee in an amount equal to the face amount
of such missing Coupon, or the surrender of such missing Coupon may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing Coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section 1002,
interest represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an office or agency located outside the United
States of America. Notwithstanding the foregoing, in case any Bearer Security of
any series is surrendered at any such office or agency in exchange for a
Registered Security of the same series after the close of business at such
office or agency on (i) any Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date or
proposed date of payment, as the case may be (or, if such Coupon is so
surrendered with such Bearer Security, such Coupon shall be returned to the
Person so surrendering the Bearer
25
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date of payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such Coupon, when due in
accordance with the provisions of this Indenture.
The Company will at all times designate one Person (who may be the
Company and who need not be a Security Registrar) to act as repository of a
master list of names and addresses of the Holders of the Registered Securities.
The Corporate Trust Office of the Trustee shall act as such repository unless
and until some other Person is, by written notice from the Company to such
office or agency and each Security Registrar, designated by the Company to act
as such. The Company shall cause each Security Registrar to furnish to such
repository, on a current basis, such information as to all registrations of
transfer and exchanges effected by such Security Registrar, as may be necessary
to enable such repository to maintain the master list of Registered Holders on
as current a basis as is practicable.
No Person shall at any time be designated as or act as a Security
Registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
Every Registered Security presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Company or the
Trustee) be duly endorsed by, or be accompanied by a written instrument of
transfer or exchange in form satisfactory to the Company and the Trustee duly
executed by, the Holder or his attorney duly authorized in writing.
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 exchange
or registration of transfer of Securities, other than exchanges pursuant to
Section 304, 906 or 1107 not involving any registration of transfer. No service
charge shall be made for any such transaction.
The Company shall not be required (1) to exchange or register a
transfer of any Securities of any series for a period of 15 days next preceding
the selection of Securities of that series to be redeemed, (2) to exchange or
register a transfer of any Registered Securities selected, called or being
called for redemption or surrendered for repayment in whole or in part except,
in the case of any Security to be redeemed or repaid in part, the portion
thereof not so to be redeemed or repaid, or (3) to exchange any Bearer Security
so selected for redemption, except that such a Bearer Security may be exchanged
for a Registered Security of that series and like tenor; PROVIDED, HOWEVER, that
such Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated in Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 906, and 1107 for the Securities of, and no
transfer of a Global Security of any series may be registered to, any Person
other than the Depositary for such Security or its nominee unless (1) such
Depositary (A) notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or (B) ceases
26
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, (2) the Company executes and delivers to the Trustee a Company Order
that such Global Security shall be so exchangeable and the transfer thereof so
registerable, or (3) there shall have occurred and be continuing an Event of
Default, or an event which after notice or lapse of time would be an Event of
Default, with respect to the Securities evidenced by such Global Security. Upon
the occurrence in respect of any Global Security of any series of any one or
more of the conditions specified in clauses (1), (2) or (3) of the preceding
sentence or such other conditions as may be specified as contemplated in Section
301 for such series, such as that the Securities of such series may be exchanged
for Bearer Securities, such Global Security may be exchanged for Registered
Securities in the names of, and the transfer of such Global Security may be
registered to, such Persons (including Persons other than the Depositary with
respect to such series and its nominees), as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security shall also be a Global Security and
shall bear the legend specified in Section 203 except for any Security
authenticated and delivered in exchange for, or upon registration of transfer
of, a Global Security pursuant to the preceding sentence.
Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or Coupon shall become
mutilated or defaced or be destroyed, lost or stolen, in the absence of notice
to the Company or the Trustee that such Security or Coupon has been acquired by
a bona fide purchaser, the Company may in its discretion execute, and the
Trustee, upon a Company Request, shall authenticate and deliver, a new
Registered Security, if such surrendered Security was a Registered Security, or
a new Bearer Security with Coupons corresponding to the Coupons appertaining to
the surrendered Security, if such surrendered Security was a Bearer Security,
which shall be of the same series and of like tenor and aggregate principal
amount, bearing a number or other distinguishing symbol not contemporaneously
Outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to the Company
and to the Trustee (and any agent of the Company or Trustee, if requested by the
Company) such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security, or of such Coupon appurtenant thereto, and of the ownership
thereof.
Upon the issuance of any substitute Security, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Company in its discretion may instead of issuing
a substitute Security pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if the
applicant for such payment shall furnish to the Company and to the Trustee (and
any agent of the Company or the Trustee, if requested
27
by the Company or the Trustee) such security or indemnity as any of them may
require to indemnify and defend and to save each of them harmless, and, in every
case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security (and every appurtenant Coupon, if any) of
any series issued pursuant to the provisions of this Section by virtue of the
fact that any such Security is destroyed, lost or stolen shall constitute an
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 (but shall be subject to all the limitations of
rights set forth in) this Indenture equally and proportionately with any and all
other Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, defaced, destroyed, lost or stolen
Securities and shall preclude (to the extent lawful) any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified for a particular series pursuant to
Section 301, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered in the Security Register at the close of business on
the Record Date for such interest either (i) by check mailed to the address of
such Person as referenced in the Security Register or (ii) by wire transfer to
an account designated by such Person pursuant to an arrangement that is
satisfactory to the Company and the Trustee. Unless otherwise provided pursuant
to Section 301, the Company shall pay to the Trustee or the Paying Agent the
aggregate amount of interest in immediately available funds by 10:00 A.M. New
York City time on the Interest Payment Date. The Trustee shall not be held
responsible or liable for any loss resulting from a failure of the federal funds
wire system or any other occurrence beyond its control in connection with wire
transfers made pursuant to this Section 307.
Except as otherwise specified for a particular series pursuant to
Section 301, (i) interest on any Bearer Securities shall be paid only against
presentation and surrender of the Coupons for such interest installments as are
evidenced thereby as they mature and (ii) the accreted amount, if any, with
respect to Bearer Securities which constitute Original Issue Discount Securities
shall be paid only against presentation and surrender of such Securities; in
either case at the office of a Paying Agent located outside the United States of
America, unless the Company shall have otherwise instructed the Trustee in
writing, provided that the Company furnishes the Trustee with an Opinion of
Counsel stating that any such instruction for payment in the United States of
America does not cause any Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations. The
interest on any temporary Bearer Security shall be paid, as to any installment
of interest evidenced by a Coupon attached thereto, only upon presentation and
surrender of such Coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest on a Bearer
Security or
28
Coupon shall become due, the payment of the full amount so payable at the office
or offices of all the Paying Agents outside the United States is illegal or
effectively precluded because of the imposition of exchange controls or other
similar restrictions on the payment of such amount in United States dollars,
then the Company may instruct the Trustee in writing to make such payments at a
Paying Agent located in the United States of America, provided that the Company
furnishes the Trustee with an Opinion of Counsel stating that provision for such
payment in the United States of America would not cause such Bearer Security to
be treated as a "registration-required obligation" under United States laws and
regulations.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a special record date ("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 not less than 30 days
prior to the date of the proposed payment 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 Registered Securities of
such series at its address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Registered 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
29
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry all the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the Person in whose name any Registered Security shall be
registered in the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, any premium or interest on, such
Registered Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any Coupon as the
absolute owner of such Bearer Security or Coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or Coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
All payments so made to any such Person or bearer, or upon his
order, shall be valid and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for moneys payable upon any such
Security.
Section 309. Cancellation.
All Securities and Coupons surrendered for the purpose of payment,
redemption, registration of transfer or exchange, or for credit against any
payment in respect of a sinking or analogous fund, if surrendered to the
Company, any Security Registrar, any Paying Agent or any other agent of the
Company or any agent of the Trustee, shall be delivered to the Trustee and
promptly canceled by it or, if surrendered to the Trustee, shall be promptly
canceled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy canceled Securities and Coupons held by it and, in the case of
canceled Securities, deliver a certificate of destruction to the Company. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
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Section 310. Computation of Interest.
Except as otherwise specified as contemplated in 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. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any, on) and interest, if
any, on any Registered or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as the case may
be, is payable. The provisions of this Section 311 may be modified or superseded
with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (and
premium, if any, on) or interest, if any, on such Registered Securities in any
Currency which may be designated for such election by delivering to the Trustee
for such series of Registered Securities a written election with signature
guarantees and in the applicable form established pursuant to Section 301, not
later than the close of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such payments in any
such Currency, such election will remain in effect for such Holder or any
transferee of such Holder until changed by such Holder or such transferee by
written notice to the Trustee for such series of Registered Securities (but any
such change must be made not later than the close of business on the Election
Date immediately preceding the net payment date to be effective for the payment
to be made on such payment date and no such change of election made be made with
respect to payments to be made on any Registered Security of such series with
respect to which (i) an Event of Default has occurred, (ii) the Company has
deposited funds pursuant to Articles Four or Fourteen, (iii) a notice of
redemption has been given by the Company or (iv) a notice of option to elect
repayment has been given by such Holder or such transferee). Any Holder of any
such Registered Security who shall not have delivered any such election to the
Trustee of such series of Registered Securities not later than the close of
business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in subsection (a)
above. The Trustee for each such series of Registered Securities shall notify
the Exchange Rate Agent as soon as practicable, but not later than two Business
Days after the Election Date of the aggregate principal amount of Registered
Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, not later than the fourth Business Day after the Election
Date for each payment date for Registered Securities of any series, the Exchange
Rate Agent will deliver to the Company a written notice specifying, in the
Currency in which Registered Securities of such series
31
are payable, the respective aggregate amounts of principal of (and premium, if
any, on) and interest, if any, on the Registered Securities to be paid on such
payment date, specifying the amounts in such Currency so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another currency as
provided in paragraph (b) above. If the election referred to in paragraph (b)
above has been provided for pursuant to Section 301 and if at least one Holder
has made such election, then, unless otherwise specified pursuant to Section
301, on the fifth Business Date preceding such payment date the Company will
deliver to the Trustee for such series of Registered Securities an Exchange Rate
Officer's Certificate in respect of the Dollar or Foreign Currency payments to
be made on such payment date. Unless otherwise specified pursuant to Section
301, the Dollar or Foreign Currency amount receivable by Holders of registered
Securities who have elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the third Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency
in which any of the Securities are denominated or payable other than pursuant to
an election provided for pursuant to paragraph (b) above, then with respect to
each date for the payment of principal of (and premium, if any, on) and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the Currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee or any
Paying Agent to the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in subsection (d)
above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h) below
shall be the sum of each amount obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for such
Component
32
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 311 the following terms shall have
the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency of the
relevant currency shall be divided or multiplied in the same proportion.
If after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts of
such Component Currencies shall be replaced by an amount in such single
Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single Currency, and
such amount shall thereafter be a Specified Amount and such single
Currency shall thereafter be a Component Currency. If after the Conversion
Date any Component Currency shall be divided into two or more Currencies,
the Specified Amount of such Component Currency shall be replaced by
amounts of such two or more Currencies, having an aggregate dollar
Equivalent Value at the Market Exchange Rate on the date of such
replacement equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately before
such division and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited
to, the ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any
Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculation the Dollar Equivalent of the Currency
Unit, be converted into Dollars at the Market Exchange Rate in effect on
the Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to Section 301(11) by which the written
election referred to in subsection (b) above may be made.
All decisions and determinations by the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above 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 the Trustee for the appropriate series of
Securities and all Holders of such Securities denominated or payable in the
relevant Currency. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustee for the appropriate series of Securities of any such
33
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the Company will similarly give written notice to the Trustee of
the appropriate series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 312. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Currency other
than Dollars or (ii) may be payable in a Currency other than Dollars, or so long
as it is required under any other provision of this Indenture, then the Company
will appoint and maintain with respect to each such series of Securities, or as
so required, at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange determinations at the
time and in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 311.
(b) No resignation of the Exchange Rate Agent and no appointment of
a successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company, with a copy to the
Trustee accepting such appointment executed by the successor Exchange Rate
Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified
34
pursuant to Section 301, at any time there shall only be one Exchange Rate Agent
with respect to the Securities of any particular series that are originally
issued by the Company on the same date and that are initially denominated and/or
payable in the same Currency).
Section 313. Compliance with Certain Laws and Regulations.
If any Bearer Securities are to be issued in any series of
Securities, the Company will use reasonable efforts to provide for arrangements
and procedures designed pursuant to then applicable laws and regulations, if
any, to ensure that Bearer Securities are sold or resold, exchanged, transferred
and paid only in compliance with such laws and regulations and without adverse
consequences to the Company or the Trustee.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, upon a Company request and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and all
Coupons appertaining thereto (other than (i) Securities and Coupons which
have been destroyed, lost or stolen and which have been replaced or paid
as provided in Xxxxxxx 000, (xx) Securities and Coupons for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003, (iii) Coupons appertaining
to Bearer Securities surrendered in exchange for Registered Securities and
maturing after such exchange, surrender of which is not required or has
been waived as provided in Section 305, and (iv) Coupons appertaining to
Bearer Securities called for redemption and maturing after the relevant
Redemption Date, surrender of which has been waived as provided in Section
1106) have been delivered to the Trustee for cancellation; or
(B) all such Securities, and, in the case of (i) and (ii) below,
any Coupons appertaining thereto, not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
35
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the obligations
of the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section 401, the obligations of the Trustee under Sections 305, 306, 402
and 1002 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) or Depositary as the
Trustee may determine, to the Holders of the particular Securities of such
series for the payment or redemption of which such money has been deposited with
or received by the Trustee, of all sums due and to become due thereon for
principal and any premium and interest.
ARTICLE FIVE
Remedies
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Section 501. Events of Default.
"Event of Default", with respect to Securities of a particular
series wherever used herein, means any one of the following events and such
other events as may be established with respect to the Securities of such series
as contemplated in Section 301, continued for the period of time, if any, and
after the giving of notice, if any, designated in this Indenture or as may be
established with respect to such Securities as contemplated in Section 301, as
the case may be, unless such event is either inapplicable or is specifically
deleted or modified in, or pursuant to, the applicable Board Resolution or in
the supplemental indenture under which such series of Securities is issued, as
the case may be, as contemplated in Section 301:
(1) default in the payment of the principal of, or any
premium on, any of the Securities of such series as and when the same
shall become due and payable either at Stated Maturity, upon redemption,
by declaration or otherwise; or
(2) default in the payment of any installment of interest,
if any, upon any of the Securities of such series as and when it shall
become due and payable, and continuance of such default for a period of 30
days; or
(3) default in the payment of any sinking fund payment, when
and as due and payable by the terms of the Securities of such series; or
(4) default in the performance, or breach, of any covenant
or agreement of the Company in the Securities of such series in any
resolution of the Board of Directors of the Company authorizing the
issuance of that series of Securities, in this Indenture with respect to
such series or in any supplemental indenture with respect to such series
(other than a covenant or agreement a default in the performance of which
or a breach of which is elsewhere in this Section 501 specifically dealt
with or which has expressly been included in this Indenture and designated
as being solely for the benefit of a series of Securities other than such
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of such
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) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed in excess of $20,000,000 of
the Company or any Significant Subsidiary (including a default with
respect to Securities of any series other than such series) or under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any such indebtedness for money
borrowed by the Company or any Significant Subsidiary (including this
Indenture), whether such indebtedness now exists or shall hereafter be
created, and, if not already matured in accordance with its terms, such
indebtedness has been accelerated without such involuntary acceleration
having been rescinded or annulled within a period of 15 days after
37
there shall have 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 aggregate principal amount of the Outstanding Securities
of such series a written notice specifying such default and requiring the
Company to cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; PROVIDED, HOWEVER,
that, if prior to the entry of judgment in favor of the Trustee for the
payment of the Securities of such series, such default shall be remedied
or cured by the Company or waived by the holders of such indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived without any
action on the part of the Trustee or any of the Holders; or
(6) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Company or for all or
substantially all of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 90 consecutive days; or
(7) the Company shall commence a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or consent
to the entry of an order for relief in an involuntary case under any such
law, or consent to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for all or substantially all of its property,
or make any general assignment for the benefit of creditors, or the
admission by the Company in writing of its inability to pay its debts
generally as they become due; or
(8) any other Event of Default provided with respect to
Securities of such series.
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, and in each and every such
case, unless the principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of such
series, by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the entire principal amount (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal as
may be specified in the terms of such series) of all of the Securities of such
series and any premium and interest accrued thereon to be due and payable
immediately, and upon any such declaration such principal amount (or specified
amount) and any premium and interest accrued thereon shall become immediately
due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities,
38
such portion of the principal as may be specified in the terms thereof) of the
Securities of any series shall have been so declared due and payable, and before
any judgment or decree for the payment of money due shall have been obtained or
entered as hereinafter provided,
(1) the Company shall pay or shall deposit with the Trustee
a sum sufficient to pay the premium and all matured installments of
interest, if any, upon all the Securities of such series and the principal
of any and all Securities of such series which shall have become due
otherwise than by such declaration of acceleration (with premium and
interest upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue premium and
installments of interest, if any, at the Overdue Rate applicable to such
series to the date of such payment or deposit), and all amounts payable to
the Trustee pursuant to Section 607, and
(2) all Events of Default under the Indenture with respect
to such series of Securities other than the nonpayment of the principal of
such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided in Section 513,
then and in every such case the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of such series, by written notice
to the Company and to the Trustee, may rescind and annul such declaration and
its consequences with respect to such series, but no such rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former rights
and positions thereunder.
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 installment of
interest on any of the Securities of any series as and when such interest
becomes due and payable, and such default continues for a period of 30
days, or
39
(2) a default is made in the payment of the principal of,
and any premium on, any of the Securities of any series as and when the
same becomes due and payable, whether upon Stated Maturity of the
Securities of such series or upon redemption or by declaration or
otherwise, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation when the same becomes due by
the terms of the Securities of any series,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of the Securities of such series the whole amount then
due and payable on all Securities of such series for principal and any premium
and interest as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue premium and installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the Trustee
pursuant to Section 607.
Until such demand is made by the Trustee, the Company may pay the
principal of and any premium and interest on the Securities of any series to the
registered Holders, whether or not the principal of and any premium and interest
on the Securities of such series be overdue.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Company or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
If an Event of Default with respect to Securities of any Series has
occurred, has not been waived 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 of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture or to enforce any
other legal or equitable right granted in this Indenture or by law.
40
Section 504. Trustee May File Proofs of Claim.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Securities of
any series under Title 11 of the United States Code or any other similar
applicable Federal or State law, or in case a receiver, trustee in bankruptcy or
similar official shall have been appointed for the property of the Company or
such other obligor, or in case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities of any series, or
to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(1) to file and prove a claim or claims for the whole amount
of principal (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be due
and payable with respect to such series pursuant to a declaration in
accordance with Section 502) and any premium and interest owing and unpaid
in respect of the Securities of any series, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for any amounts payable to the Trustee pursuant to
Section 607) and of the Holders allowed in any judicial proceedings
relating to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other
obligor;
(2) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or of a person
performing similar functions in comparable proceedings; and
(3) to collect and receive any money or other property
payable or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Holders and of the Trustee on
their behalf (after deduction of costs and expenses of collection, and any
further amounts payable to the Trustee pursuant to Section 607 and
incurred by it); and any trustee in bankruptcy, receiver or other similar
official is hereby authorized by each of the Holders to make payments to
the Trustee and, in the event that the Trustee shall consent to the making
of payments directly to the Holders, to pay to the Trustee costs and
expenses of collection and any further amounts payable to the Trustee
pursuant to Section 607 and incurred by it.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Holder any plan or reorganization, arrangement, adjustment or composition
affecting the Securities of any series 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, except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
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Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, or under the
Securities of any series, may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series 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 Moneys Collected by Trustee.
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 the case of distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities or Coupons in respect of which
money has been collected and stamping (or otherwise noting) thereon the payment,
or issuing Securities in reduced principal amounts in exchange for the presented
Securities of like series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 607;
SECOND: In case the principal of the Outstanding Securities in
respect of which money has been collected shall not have become and be
then due and payable, to the payment of interest, if any, on the
Securities in default in the order of the Maturity of the installments of
such interest, with interest (to the extent that such interest has been
collected by the Trustee and to the extent permitted by applicable law)
upon the overdue installments of interest at the Overdue Rate applicable
to such Securities, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference; PROVIDED, HOWEVER,
that such payments shall be made subject to the provisions of Article
Fourteen hereunder, if applicable;
THIRD: In case the principal of the Outstanding Securities in
respect of which money has been collected shall have become and shall be
then due and payable by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon such Securities for principal and,
any premium and interest, with interest upon the overdue principal, and
(to the extent that such interest has been collected by the Trustee and to
the extent permitted by applicable law) upon overdue premium and
installments of interest, if any, at the Overdue Rate applicable to such
Securities; and in case such money shall be insufficient to pay in full
the whole amount so due and unpaid upon such Securities, then to the
payment of such principal and any premium and interest, without preference
or priority of principal over premium and interest, if any, or of
interest, if any, over principal and premium, if any, or of premium, if
any, over principal and interest, if any, or of any installment of
interest, if any, over any other installment of interest, if any, or of
any Security over any other Security, ratably to the aggregate of such
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principal and accrued and unpaid premium and interest, if any; PROVIDED,
HOWEVER, that such payments shall be made subject to the provisions of
Article Fourteen hereunder, if applicable; and
FOURTH: To the payment of the remainder, if any, to the Company or
as a court of competent jurisdiction may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to institute any action
or proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee in
bankruptcy, receiver or other similar official or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of default with respect to Securities of such series and of the
continuance thereof, as hereinbefore provided;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of such series shall have made
written request to the Trustee to institute such action, suit or
proceedings 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 neglected or refused to
institute any such action, suit or proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period pursuant to Section
512;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the Trustee,
that no one or more Holders of any Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of Securities, 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, ratable and common benefit of all Holders of Securities. For the
protection and enforcement of the provisions of this Section, each Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
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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 any premium and (subject to Section 307)
any interest 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.
In case the Trustee or any Holder shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been determined adversely to the
Trustee or to such Holder, then and in every such case the Company, the Trustee
and the Holders shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Company, the
Trustee and the Holders shall continue as though no such proceedings had been
taken.
Section 510. Rights and Remedies Cumulative.
Except as provided in Section 507 and 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 to exercise any
right, power or remedy accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right, power or remedy or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein. Subject to Section 507, every power and remedy given by this Indenture
or by law to the Trustee or to the Holders of any or all series, as the case may
be, may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of such series or all series, as the
case may be.
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Section 512. Control by Holders.
The Holders of not less than a majority in aggregate 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 by this Indenture with respect to Securities of such series; PROVIDED,
HOWEVER, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee (subject to the requirements of the Trust
Indenture Act) shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that
the action or proceeding so directed may not lawfully be taken or if the
Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability or be unduly prejudicial to the
Holders not joining therein.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Holders.
Section 513. Waiver of Past Defaults.
Prior to the declaration of the acceleration of the Maturity of the
Securities of any particular series, the Holders of not less than a majority in
aggregate 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 or Event of Default with respect to such series and its consequences,
except a default not theretofore cured
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected as provided in Section 902.
In the case of any such waiver, the Company, the Trustee and the
Holders of the Securities of each series affected shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
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Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereby shall be deemed to have agreed, that 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,
a court may require any party litigant in such suit to file an undertaking to
pay the costs of such suit and may assess costs against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act; PROVIDED,
HOWEVER, that neither this Section 514 nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with respect
to the Securities of such series, 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, with respect to Securities of such series, conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the
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Securities of such series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(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 or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 602. Notice of Defaults.
The Trustee shall transmit notices of default to the Holders in
accordance with section 315(b) and related provisions of the Trust Indenture
Act. For the purpose of this Section 602, 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; PROVIDED, HOWEVER, that,
except in the case of a default in the payment of the principal of (or premium,
if any, on) or interest, if any, on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series.
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Section 603. Certain Rights of the Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Order or Company Request
(unless other evidence in respect thereof be herein specifically prescribed) 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 any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith and in
reliance thereon;
(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, order 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, order or direction;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of any series affected; but the Trustee, in its
discretion may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder; and
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(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, 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 the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representation as to
the validity or sufficiency of this Indenture or of the Securities, provided
that the Trustee shall not be relieved of its duty to authenticate Securities
only as authorized by this Indenture. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Company of any of the
Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent and, subject to the
provisions of the Trust Indenture Act, may otherwise deal with the Company and
receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Subject to the provisions of Section 1003, all money received by the
Trustee or any Paying Agent, all money and Government Obligations deposited with
the Trustee pursuant to Section 1302 or Section 1303 and all money received by
the Trustee in respect of Government Obligations deposited with the Trustee
pursuant to Section 1302 or Section 1303, shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any Paying Agent shall be
under any liability for interest on any money received by it hereunder except as
otherwise agreed by the Company. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such money shall be paid
from time to time in accordance with a Company Order.
Section 607. Compensation and Reimbursement.
The Company covenants and agrees
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by
it hereunder (which 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
49
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of the Trustee
in accordance with any of the provisions 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 for, and to hold it harmless
against, any loss, liability, or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance
or administration of this Indenture or the trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so promptly notify the Company,
however, shall not relieve the Company of its obligations under this paragraph
except to the extent such failure shall have materially prejudiced the Company.
The Company may at its option defend the claim and, if it so defends, then the
Trustee shall cooperate in the defense and the Company shall not be responsible
for any expenses of the Trustee's counsel thereafter. The Company need not pay
for any settlement made without its consent.
The obligations of the Company under this Section 607 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(6) or (7), the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
Section 608. Right to Rely on Officers' Certificate.
Subject to the requirements of the Trust Indenture Act, whenever in
the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of actual knowledge to the contrary, willful misconduct or bad faith on
the part of the Trustee, be deemed to be conclusively proved and established by
an Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of actual knowledge to the contrary, willful misconduct or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture upon the
faith thereof.
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Section 609. Eligibility.
The Trustee for each series of Securities hereunder shall at all
times be a Person organized and doing business under the laws of the United
States of America or of any State or the District of Columbia, having a combined
capital and surplus of at least $50,000,000, and eligible under the provisions
of the Trust Indenture Act. If such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person at any time shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor Trustee with respect to such series
pursuant to any of the provisions of this Section 610 shall become effective
upon acceptance of appointment by the successor Trustee as provided in Section
611.
(b) The Trustee may resign at any time with respect to one or more
or all series of Securities by giving 90 days written notice of resignation to
the Company. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor Trustee with respect to the applicable series by
written instrument in duplicate, executed by authority of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee, or any Holder who has been a bona fide Holder of a Security
of the applicable series for at least six months may, subject to the
requirements of the Trust Indenture Act, on behalf of itself and all others
similarly situated, petition any such court for the appointment of a successor
Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may at any time remove the Trustee with
respect to Securities of such series and appoint a successor Trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor Trustee so appointed and to the Company the evidence
provided for in Section 104 of the action in that regard taken by the Holders.
(d) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security of a relevant series for at least six months; or
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(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 609 with respect to any series of
Securities 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 of
a relevant series for at least six months; or
(3) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company may remove the Trustee with respect to
the applicable series of Securities (or all series, if required) and appoint a
successor Trustee for such series by written instrument, in duplicate, executed
by authority of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or
(ii) subject to the requirements of the Trust Indenture Act, any Holder who has
been a bona fide Holder of a Security of such series for at least six months may
on behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee with respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of the Trustee with respect to any series of Securities for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee for that series of Securities. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities 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, become the successor Trustee with respect to such series and
supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so
appointed by the Company or the Holders of such series and accepted appointment
in the manner hereinafter provided, subject to Section 514, any Holder who has
been a bona fide Holder of a Security of that 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 such series.
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Section 611. Acceptance of Appointment by Successor.
Any successor Trustee appointed as provided in Section 610 shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any
applicable series shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
Trustee hereunder, with like effect as if originally named as Trustee for such
series hereunder; but, nevertheless, on the written request of the Company or of
the successor Trustee, upon payment (or due provision therefor) of any amounts
then due it pursuant to Section 607, the Predecessor Trustee ceasing to act
shall, subject to Section 1003, pay over to the successor Trustee all money at
the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor Trustee all such rights, powers, duties and
obligations. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 607.
If a successor Trustee is appointed with respect to the Securities
of one or more (but not all) series, the Company, the predecessor Trustee and
each successor Trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-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.
No successor Trustee with respect to any series of Securities shall
accept appointment as provided in this Section unless at the time of such
acceptance such successor Trustee shall, with respect to such series, be
qualified under the requirements of the Trust Indenture Act and eligible under
the provisions of Section 609.
Upon acceptance of appointment by any successor Trustee as provided
in this Section 611, the Company shall give notice thereof to the Holders of
Securities of any series for which such successor Trustee is acting as Trustee
in the manner provided for notices to the Holders of Securities in Section 106.
If the Company fails to give such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
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Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such Person shall be
qualified under the requirements of the Trust Indenture Act 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, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee by
merger, conversion or consolidation may adopt the certificate of authentication
of any predecessor Trustee and deliver such Securities so authenticated; and, in
case at that time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of such successor to the Trustee or, if such successor to the
Trustee is a successor by merger, conversion or consolidation, in the name of
any predecessor hereunder; PROVIDED, HOWEVER, that such successor shall use the
predecessor's name only in such circumstances set forth in this Section and in
all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Sections 311(a) and 311(b) of the Trust Indenture Act regarding
the collection of claims against the Company (or any such other obligor).
54
Section 614. Appointment of Authenticating Agent.
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 Securities or such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, 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 or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of such supervising or examining authority, then
for the purposes of this Section 614, 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 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 614.
Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such Person shall be otherwise eligible under this Section 614,
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 at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 614.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 614, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section 614, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Indenture.
Fleet National Bank,
as Trustee
By
---------------------------------
As Authenticating Agent
By
---------------------------------
Authorized Officer
ARTICLE SEVEN
Holders' List 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:
(a) semi-annually, not later than 15 days after each Record Date for
the Securities of any series (and on dates as specified as contemplated in
Section 301 for any series of Original Issue Discount Securities which by their
terms bear interest only after Maturity), a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of the
Securities of such series as of each such Record Date (and as of dates as
specified as contemplated in Section 301 of this Indenture), and
(b) at such other times as the Trustee may request in writing,
within 15 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
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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 Registered Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(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 agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15, 1997 and on or before May 15 in
each year thereafter, so long as any Securities are Outstanding hereunder, the
Trustee shall transmit by mail to Holders of Securities of any series such
reports concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act, including, without limitation,
section 313 thereof, in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities of such series are listed, with the Commission and also
with the Company. The Company will notify the Trustee when any series of
Securities are listed on any stock exchange or automatic quotation series.
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Section 704. Reports by Company.
The Company will:
(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 Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will 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 Exchange Act, in
respect of a security listed and registered on a national securities exchange as
may be required 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 to all Holders of Securities, in the manner and to the extent
provided in Section 703, 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 704 as
may be required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Company with or into any other
Person (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of all or substantially all the property or assets of the Company, to any other
Person (whether or not affiliated with the Company) authorized to acquire and
operate the same; PROVIDED, HOWEVER, and the Company hereby covenants and
agrees, that upon any such consolidation, merger, transfer, conveyance or lease:
(1) the due and punctual payment of the principal of and any
premium and interest on all of the Securities, according to their tenor,
and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by
the Company, shall be expressly
58
assumed, by supplemental indenture satisfactory in form to the Trustee,
executed and delivered to the Trustee by the Person (if other than the
Company) formed by such consolidation, or into which the Company shall
have been merged, or by the Person which shall have acquired or leased
such property or assets and such person shall be organized and existing
under the laws of the United States of America or of any State or the
District of Columbia;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing; PROVIDED, HOWEVER, that a transaction will be deemed to be in
violation of this clause (2) only with respect to those series of
Securities whereby such Event of Default or such event shall have occurred
and be continuing; and
(3) the Trustee, subject to the requirements of the Trust
Indenture Act and Section 603, shall receive an Opinion of Counsel and
Officers' Certificate to the effect that such consolidation, merger,
conveyance, transfer or lease and any such assumption complies with the
provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of all or
substantially all the property or assets of the Company in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
In case of any such consolidation, merger, conveyance, transfer or
lease, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
Section 803. Senior Securities to Be Secured in Certain Events.
If, upon any such consolidation of the Company with, or merger of
the Company into, any other corporation, or upon any conveyance or transfer of
the property of the Company substantially as an entirety to any other Person,
any Principal Property of the Company or any share of stock or Debt of any
Significant Subsidiary owned immediately prior thereto, would become or be
subject to any Mortgage, then unless such Mortgage could be created pursuant to
Section 1004 without equally and ratably securing the Senior Securities, the
Company, prior to or simultaneously with such consolidation, merger, conveyance
or transfer, will as to such Principal Property or share of stock or Debt of any
Significant Subsidiary, secure the Senior Securities Outstanding hereunder
(together with, if the Company shall so determine, any other Debt of the Company
now existing or hereafter created which is not subordinate to the Senior
Securities, equally and
59
ratably with (or prior to) the Debt which upon such consolidation, merger,
conveyance or transfer is to become secured as to such Principal Property or
share of stock or Debt of any Significant Subsidiary by such Mortgage, or will
cause such Senior Securities, to be so secured; provided that for the purpose of
providing such equal and ratable security the principal amount of Original Issue
Discount Securities shall mean that amount which, at the time of making such
provision of such equal and ratable security, would be due and payable pursuant
to Section 502 and the terms of such Original Issue Discount Securities upon an
declaration of acceleration of the Maturity thereof, and the extent of such
equal and ratable security shall be adjusted, to the extent permitted by law, as
and when said amount changes over time pursuant to the terms of such Original
Issue Discount Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants,
agreements and obligations of the Company contained 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; or
(3) to add any additional Events of Default and to provide
with respect thereto for any particular periods of grace after default
(which may be shorter or longer than that allowed in the case of other
defaults) or for immediate enforcement upon such default or for any
limitation of the remedies available to the Trustee upon such default; or
(4) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities; PROVIDED,
HOWEVER, that any such addition, change or elimination (i) shall neither
(A) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with respect
to such provision or (ii) shall become effective only when there is no
such Security Outstanding; or
(5) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any property
or assets;
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or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(7) 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; or
(8) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture; or to change or eliminate any provision or to make
any other provisions with respect to matters or questions arising under
this Indenture or under any supplemental indenture as the Company may deem
necessary or desirable; PROVIDED, HOWEVER, that such action shall not
adversely affect the interests of the Holders of the Outstanding
Securities of any series.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
by such supplemental indenture (each such series voting as a single class), by
act of such 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 any supplemental indenture or of modifying in any manner the rights and
obligations of the Company and the rights of the Holders of the Securities of
such series under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the 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 reduce any premium thereof or change the time
of payment of any premium thereon, or reduce the rate or change the time
of payment of interest thereon, if any, or reduce any amount payable on
redemption or reduce the Overdue Rate thereof or make the principal
thereof or any premium or interest thereon, payable at any place of
payment or in any Currency other than as provided in the Security or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon an acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or impair, if the Securities provide therefor,
any right of repayment at the option of the Holder, or impair the right to
institute a suit for the enforcement of any payment on or with respect to
any Security pursuant to Section 507; or
(2) reduce the aforesaid percentage of Outstanding
Securities
61
the consent of the Holders of which is required for any such supplemental
indenture or for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults.
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 preceding
sentence shall not, however, raise any inference as to whether or not a
particular series is affected by any supplemental indenture not referred to in
such sentence.
It shall not be necessary for the consent of the Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 902, the
Company shall give notice thereof to the Holders of Securities of each series
affected thereby in the manner provided for notices to the Holders of Securities
in Section 106, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and any such supplemental indenture shall form a part of this
Indenture for all purposes and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
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Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as in effect at the date
such supplemental indenture is executed.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture. If the Company or the Trustee shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company, and, upon a Company Request,
authenticated and delivered by the Trustee in exchange for the Outstanding
Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, and any premium and interest on, the Securities of that series in
accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will designate and maintain in the Borough of Manhattan,
The City of New York, 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, 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. 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, 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 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 The City of New York for such purposes. The Company will give
prompt written notice to the
63
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or any premium or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent 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 any premium or interest on the 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 the principal of or any premium or interest on the
Securities of that series; and
(3) at any time during the continuance of any such default
referred to in clause (2) above, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal and any premium or interest has become due and
payable shall be paid to the Company
64
on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper in The City of New York or other
place of payment, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 1004. Limitations on Secured Debt.
The Company agrees for the benefit of Holders of Senior Securities
only, that unless otherwise provided herein, the Company will not itself, and
will not permit any Subsidiary to, create, incur, issue, assume or guarantee any
Debt secured after the date of the Indenture by pledge of, or mortgage or other
lien ("Mortgage") on, any Principal Property of the Company or any Significant
Subsidiary, or any shares of stock or Debt of any Significant Subsidiary without
effectively providing that the Senior Securities of all series issued pursuant
to the Indenture (together with, if the Company shall so determine, any other
Debt of the Company or such Significant Subsidiary then existing or thereafter
created which is not subordinate to the Senior Securities) shall be secured
equally and ratably with (or, at the option of the Company, prior to) such
secured Debt, so long as such secured Debt shall be so secured, unless after
giving effect thereto, the aggregate principal amount of all such secured Debt
then outstanding which would otherwise be prohibited, plus all Attributable Debt
of the Company and its Significant Subsidiaries in respect of sale and leaseback
transactions (as defined in Section 1005) occurring after the first date of
issuance of the applicable Senior Securities which would otherwise be prohibited
by the covenant described in Section 1005, would not exceed 10% of Consolidated
Net Tangible Assets.
This restriction does not apply to, and there shall be excluded in
computing secured Debt for the purpose of such restriction, Debt secured by: (i)
Mortgages existing on the date of the first issuance of Securities under this
Indenture; (ii) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Significant
Subsidiary; (iii) Mortgages in favor of the Company or any Significant
Subsidiary; (iv) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or in favor of any other
country, or any political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute; (v) Mortgages on
any real or personal property existing at the time of acquisition thereof or
created within one year of such acquisition; (vi) Mortgages to secure Debt
incurred for the purpose of financing all or any part of the purchase price or
the cost or construction or improvement of the property subject to such
Mortgage, PROVIDED, HOWEVER, that (a) the principal amount of any Debt secured
by such Mortgage does not exceed 100% of such purchase price or cost and (b)
such Mortgage does not extend to or cover any other property other than such
item or property and any improvements on such item; (vii) Mortgages securing
industrial revenue, development or similar bonds; (viii) Mortgages created in
connection with a project financed, or assets acquired, with, and created to
secure any Nonrecourse
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Obligations; and (ix) any extension, renewal, refunding or replacement (or
successive extensions, renewals, refundings or replacements), as a whole or in
part, of any Mortgage referred to in the foregoing clauses (i) to (viii),
inclusive; PROVIDED, HOWEVER, that (a) such extension, renewal, refunding or
replacement Mortgage shall be limited to all or a part of the same property,
shares of stock or Debt that secured the Mortgage extended, renewed, refunded or
replaced (plus improvements on such property) and (b) the Debt secured by such
Mortgage at such time is not increased.
Section 1005. Limitations on Sales and Leasebacks.
The Company agrees for the benefit of Holders of Senior Securities
only, that unless otherwise provided herein, the Company will not itself, and
will not permit any Significant Subsidiary to, enter into any arrangement with
any bank, insurance company or other lender or investor (not including the
Company or any Significant Subsidiary) or to which any such lender or investor
is a party, providing for the leasing by the Company or any such Significant
Subsidiary of any Principal Property which has been or is to be sold or
transferred by the Company or such Significant Subsidiary to such lender or
investor or to any Person to whom funds have been or are to be advanced by such
lender or investor (each, a "sale and leaseback transaction") (except a lease
for a temporary period, including renewals, not exceeding three years and except
leases between the Company and a Significant Subsidiary or between Significant
Subsidiaries) unless, (i) after giving effect thereto, the aggregate amount of
all Attributable Debt with respect to all such transactions occurring after the
first date of issuance of the applicable Senior Securities and existing at such
time (other than such sales and leaseback transactions as are in compliance with
the provisions described in clause (ii) of this paragraph) plus all secured Debt
then outstanding of the Company and its Significant Subsidiaries incurred after
the first date of issuance of the applicable Senior Securities which would
otherwise be prohibited by the covenant described in Section 1004 above, would
not exceed 10% of Consolidated Net Tangible Assets; or (ii) (a) the gross
proceeds of the sale or transfer of the Principal Property leased equals or
exceeds the fair market value of such Principal Property and (b) within one year
after such sale or transfer shall have been made by the Company or by a
Significant Subsidiary, the Company or a Significant Subsidiary (1) applies or
commits to apply, all of the net proceeds to the retirement of Funded Debt of
the Company or any Significant Subsidiary (other than at maturity or pursuant to
any mandatory sinking fund payment or mandatory prepayment provision) or (2)
applies or commits to apply all of the net proceeds to the purchase of property,
facilities or equipment (other than property, facilities or equipment involved
in such sale) which will constitute Principal Property.
Section 1006. Certificate of Compliance.
The Company shall deliver a certificate of compliance of the Company
to the Trustee on or before April 30 of each year pursuant to section 314(a)(4)
of the Trust Indenture Act, stating, as to each signer thereof, that,
(a) a review of the activities of the Company during such year and
of the performance under this Indenture has been made under such signer's
supervision, and
(b) to the best of such signer's knowledge, based on such review,
the Company has fulfilled all its obligations under this Indenture throughout
such year, or, if
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there has been a default in the fulfillment of any such obligation, specifying
each such default known to such signer and the nature and status thereof.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 and 1005 with respect to
the Securities of any series if before the time for such compliance the Holders
of at least a majority in aggregate principal amount of the Outstanding Senior
Securities of such series shall, by the act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated in 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 the redemption at the election of
the Company of the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed at the
Redemption Price and, if applicable, of the tenor of the Securities 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.
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Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, 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. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106 not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to each
Holder of Securities to be redeemed.
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 of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that, unless the Company defaults in making such redemption
payment, interest thereon, if any, or in the case of Original Issue
Discount Securities, the original issue discount, shall cease to accrue on
and after such date,
(5) the place or places where such Securities are to be
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surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at Company Request, by the Trustee
in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to 10:00 A.M. New York City time on any Redemption Date,
the Company shall deposit in immediately available funds 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 and as required by the
Trust Indenture Act) an amount of money (in the currency or units of currency in
which the Securities so called for redemption are denominated or an appropriate
equivalent thereof) 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. On presentation and
surrender of such Securities for redemption in accordance with such notice, such
Securities shall be paid and redeemed by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; PROVIDED, HOWEVER, that,
unless otherwise specified as contemplated in Section 301, 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 Record
Dates 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 thereof so to be redeemed shall,
until paid, bear interest from the Redemption Date at the Overdue Rate
applicable to such Security. The Company shall be responsible for the payment,
if any, of the Overdue Rate.
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Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at the place specified in the notice of redemption (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 and of like tenor, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
Securities of any series which are subject to a sinking fund for the
retirement of Securities of a series shall be subject to such sinking fund in
accordance with their terms and (except as otherwise specified as contemplated
in Section 301 for Securities of such series) in accordance with this Article.
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 (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series; PROVIDED,
HOWEVER, 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.
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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 will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of
(1) defeasance of the Securities of a series under Section 1302 or (2) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article, shall be applicable to the Securities of such
series, and the Company may at its option by or pursuant to a Board Resolution,
at any time, with respect to the Securities of such series, elect to have either
Section 1302 (if applicable) or Section 1303 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article.
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Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
to have this Section 1302 applied to the Outstanding Securities of a defeasible
series, the Company shall be deemed to have been discharged from its obligations
with respect to the Outstanding Securities of such series on the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium or interest on such Securities
when such payments are due, (2) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the
Trustee under Section 607, (3) the rights, powers, trusts, duties, and
immunities of the Trustee under Sections 304, 305, 306, 308, 309, 506 and 1003,
and otherwise the duty of the Trustee to authenticate Securities of such series
issued on registration of transfer or exchange and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option provided in
Section 1301 to have this Section 1302 applied to the Outstanding Securities of
any defeasible series notwithstanding the prior exercise of its option provided
in Section 1301 to have Section 1303 applied to the Outstanding Securities of
such series.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
to have this Section 1303 applied to the Outstanding Securities of any
defeasible series, the Company shall be released from (i) in the case of Senior
Securities of any series, its obligations under Sections 1004 and 1005 hereof or
(ii) in the case of Senior Securities or Subordinated Securities of any series,
its obligations with respect to any other covenant with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter, "covenant defeasance"). For
this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute an Event of Default under Section
501(4) or 501(8) (except to the extent covenants or agreements referenced in
such Sections remain applicable) but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
Except as expressly provided below, the following shall be the
conditions to application of either Section 1302 or Section 1303 to the
Outstanding Securities of
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such series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another Trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying Trustee) to pay
and discharge, (i) the principal of and any premium on and each
installment of principal of and any premium and interest on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. For this purpose, "Government Obligations" means securities
that are (x) direct obligations of the United States of America or, if
specified as contemplated in Section 301, the government which issued the
currency in which the Securities of such series are payable, for the
payment of which its full faith and credit is pledged or (y) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or, if specified as
contemplated in Section 301, such government which issued the currency in
which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the obligor thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such Government Obligation or a specific payment of
principal of or interest on any such Government Obligation held by such
custodian for the account of the holder of such depository receipt;
PROVIDED, HOWEVER, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of principal
of or interest on the Government Obligation evidenced by such depository
receipt;
(2) No Event of Default or event which, with notice or lapse of time
or both, would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit;
(3) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act with respect to any securities of
the Company;
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(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound;
(5) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred;
(6) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as amended,
to be delisted;
(7) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such Act or exempt from regulation thereunder;
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301;
and
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1302 or the covenant defeasance under Section 1303 (as the case may be)
have been complied with.
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of Section 1003, all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying Trustee--collectively, for purposes of this Section 1305, the
"Trustee") pursuant to Section 1304 in respect of the Outstanding Securities of
such series shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through a Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited
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pursuant to Section 1304 or the principal and any premium and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
1304 which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
Government Obligations in accordance with this Article by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and each series of Securities shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article until such time as the Trustee or the Paying Agent is permitted to apply
all such money or Governmental Obligations in accordance with this Article;
PROVIDED, HOWEVER, that, if the Company has made any payment of interest on or
principal of any series of Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such series of Securities to receive such payment from the money or Government
Obligations held by the Trustee or the Paying Agent.
ARTICLE FOURTEEN
Subordination
Section 1401. Agreement to Subordinate
The Company covenants and agrees, and each Holder of a Subordinated
Security issued hereunder, by his acceptance thereof, likewise covenants and
agrees, that all Subordinated Securities shall be issued subject to the
provisions of this Article; and each Person holding any Subordinated Security,
whether upon original issue or upon transfer, assignment or exchange thereof,
accepts and agrees that the principal of and interest (and premium, if any) on
all Subordinated Securities issued hereunder shall, to the extent and in the
manner herein set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and that the subordination is
for the benefit of the holders of the Senior Indebtedness.
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Section 1402. Payments to Holders of Subordinated Securities.
In the event of (i) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets; or (ii) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy; or (iii) any assignment for the benefit of creditors
or any other marshalling of assets or liabilities of the Company, then and in
any such event specified in clause (i), clause (ii) or clause (iii) above (each
such event, if any, herein sometimes referred to as a "PROCEEDING"):
(1) the holders of Senior Indebtedness will be entitled to receive
payment of such Senior Indebtedness in full before the holders of
Subordinated Securities are entitled to receive any payment or
distribution of cash, securities or other property with respect to the
principal of, premium, (if any), or interest on or other obligations in
respect of the Subordinated Securities, or on account of any purchase or
other acquisition of Subordinated Securities by the Company (all such
payments, distributions, purchases and acquisitions herein referred to,
individually and collectively, as a "SUBORDINATED SECURITIES PAYMENT"),
and to that end the holders of Senior Indebtedness of the Company shall be
entitled to receive, for application to the payment thereof, any
Subordinated Securities Payment which may be payable or deliverable in
respect of the Subordinated Securities in any such Proceeding; and
(2) until the Senior Indebtedness paid in full, any Subordinated
Securities Payment to which holders of Subordinated Securities would be
entitled but for this Article Fourteen will be made to holders of such
Senior Indebtedness as their interests may appear. If a Subordinated
Securities Payment is made to holders of Subordinated Securities that, due
to this Article Fourteen should not have been made to them such holders of
Subordinated Securities are required to hold it in trust for the holders
of Senior Indebtedness and pay it over to them as their interests may
appear.
In the event that, notwithstanding the foregoing provisions of this
Section 1402, the Trustee receives payment or distribution of assets of the
Company of any kind or character, before all the Senior Indebtedness of the
Company is paid in full, then and in such event, such Subordinated Securities
Payment shall be paid over or delivered forthwith to the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee, agent or other person making
payment or distribution of assets of the Company for application to the payment
of all Senior Indebtedness of the Company remaining unpaid, to the extent
necessary to pay the Senior Indebtedness of the Company in full, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness of the Company.
The consolidation of the Company with, or the merger of the Company
into, another person or the liquidation or dissolution of the Company following
the conveyance or transfer of all or substantially all of its properties and
assets as an entirety to another person upon the terms and conditions set forth
in Article Eight shall not be deemed a Proceeding for the purposes of this
Section 1402 if the person formed by such
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consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer such properties and assets as an entirety, as the case
may be, shall, as part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
Section 1403. No Payment When Senior Debt in Default.
The Company will not make any Subordinated Securities Payment or
make any deposit pursuant to the provisions described under "Defeasance" Article
Thirteen if (i) any Designated Senior Debt is not paid when due (after giving
effect to any applicable grace periods) or (ii) any other default on Designated
Senior Debt occurs and the maturity of such Designated Senior Debt is
accelerated in accordance with its terms unless, in either case, the default has
been cured or waived or has ceased to exist and any such acceleration has been
rescinded or such Designated Senior Debt has been discharged or paid in full.
Notwithstanding the foregoing, the Company may make any Subordinated Securities
Payment if the Company and the Trustee receive written notice approving such
payment from the representative of the Designated Senior Debt with respect to
which either of the events set forth in clause (i) or (ii) of the immediately
preceding sentence has occurred and is continuing.
In the event that, notwithstanding the foregoing, the Company shall
make any Subordinated Securities Payment to the Trustee or any Holder prohibited
by the foregoing provisions of this Section 1403, then and in such event, such
Subordinated Securities Payment shall be paid over and delivered forthwith to
the holders of the Senior Indebtedness of the Company remaining unpaid, to the
extent necessary to pay in full all the Senior Indebtedness of the Company.
If payment of the Notes is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of
Designated Senior Debt or the representative of such holders of the
acceleration.
The provisions of this Section 1403 shall not apply to any
Subordinated Securities Payment with respect to which Section 1402 would be
applicable.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing provisions of this Section,
shall be received by the Trustee under this Indenture or the Holders of the
Subordinated Securities before all Senior Indebtedness is paid in full or
provision is made for such payment in accordance with its terms, and if such
fact shall, at or prior to the time of such payment or distribution, have been
known to the Trustee, then such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the representative of
the holders of such Senior Indebtedness, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, as their respective interest may appear, for
application to the payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full in accordance with its
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities"
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shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article with respect to
the Subordinated Securities) to the payment of all Senior Indebtedness which may
at the time be outstanding; provided that (i) the Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such arrangement,
reorganization or readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered by such
arrangement, reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company with or into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its assets to another corporation upon the terms
and conditions provided in Article Eight shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Eight.
Nothing in this Section shall apply to claims of, or payments to, the Trustee
under or pursuant to Article Six, except as expressly provided therein. This
Section shall be subject to the further provisions of Section 1406.
Section 1404. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Subordinated Securities subject to the provisions of Sections
1402 and 1403 shall be subrogated (equally and ratably with the holders of all
obligations of the Company which by their express terms are subordinated to
Senior Indebtedness of the Company to the same extent as the Subordinated
Securities are subordinated and which are entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal of and interest on
such Subordinated Securities shall be paid in full; and for the purpose of such
subrogation, no payments of distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of such
Subordinated Securities or the Trustee on their behalf would be entitled except
for the provisions of this Article, and no payment over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of
such Subordinated Securities or the Trustee on their behalf shall, as between
the Company, its creditors other than holders of Senior Indebtedness and the
Holders of such Subordinated Securities, be deemed to be a payment by the
Company to or on account of the Senior Indebtedness; and no payments or
distributions of cash, property or securities to or for the benefit of the
Holders pursuant to the subrogation provision of this Article, which would
otherwise have been paid to the holders of Senior Indebtedness, shall be deemed
to be a payment by the Company to or for the account of such Securities. The
provisions of this Article are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or
in the Subordinated Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Subordinated Securities, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Subordinated Securities
the principal of and interest on the Subordinated Securities and the amounts
owed as and when the same shall
78
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights against the Company of the Holders of the
Subordinated Securities and creditors of the Company other than the holders of
Senior Indebtedness, nor shall anything herein or therein prevent the Holder of
any Subordinated Security or the Trustee on his behalf from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Sections 601 and
603, and the Holders of the Subordinated Securities shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such insolvency, bankruptcy, dissolution, winding-up, liquidation, arrangement
or reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Subordinated Securities for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 1405. Authorization by Holders of Subordinated Securities.
Each Holder of a Subordinated Security by his acceptance thereof
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
79
Section 1406. Notice to Trustee.
The Company shall give prompt written notice to the Trustee and to
any Paying Agent of any fact known to the Company which would prohibit the
making of any payment of moneys to or by the Trustee or any paying agent in
respect of the Subordinated Securities pursuant to the provisions of this
Article. Regardless of anything to the contrary contained in this Article or
elsewhere in this Indenture, the Trustee shall not be charged with knowledge of
the existence of any Senior Indebtedness or of any default or event of default
with respect to any Senior Indebtedness or of any other facts which would
prohibit the making of any payment of moneys to or by the Trustee in respect of
the Subordinated Securities unless and until the Trustee shall have received
notice in writing at its Corporate Trust Office to that effect signed by an
officer of the Company, or by a holder or agent of a holder of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
agent, or by the trustee under any indenture pursuant to which Senior
Indebtedness shall be outstanding, and, prior to the receipt of any such written
notice, the Trustee shall, subject to Sections 601 and 603, be entitled to
assume that no such facts exist; PROVIDED, that if on a date at least two
Business Days prior to the date upon which by the terms hereof any such moneys
shall become payable for any purpose (including, without limitation, the payment
of the principal of or interest on any Security) the Trustee shall not have
received with respect to such moneys the notice provided for in this section,
then, regardless of anything herein to the contrary, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date.
Regardless of anything to the contrary herein (but subject, in the
case of clause (a) of this paragraph, to Section 1402), nothing shall prevent
(a) any payment by the Company or the Trustee to the Holders of Subordinated
Securities of amounts in connection with a redemption of Subordinated Securities
if (i) notice of such redemption has been given pursuant to Article Eleven prior
to the receipt by the Trustee of written notice as aforesaid, and (ii) such
notice of redemption is given not earlier than 60 days before the redemption
date, or (b) any payment by the Trustee to the Holders of Subordinated
Securities of amounts deposited with it pursuant to Section 1302.
Subject to Sections 601 and 603, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or other representative on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee or other representative on behalf of any
such holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and, if such evidence is not furnished, the
Trustee may defer any Payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
80
Section 1407. Trustee's Relation to Senior Indebtedness
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Indebtedness and
nothing in the Trust Indenture Act or in this Indenture shall deprive the
Trustee or any such agent of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 607.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Sections 601 and 603, the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall in good faith pay over or deliver to
Holders of Subordinated Securities, the Company or any other Person moneys or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
Section 1408. No Impairment of Subordination.
No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Section 1409. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from money or the proceeds of U.S. Government Obligations held in trust under
Article Thirteen by the Trustee for the payment of principal of, premium, if
any, and interest on the Subordinated Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions on
this Article Fourteen, and none of the Trustee or the holders of the
Subordinated Securities shall be obligated to pay over any such amount to the
Company or any holder of Senior Indebtedness of the Company or any other
creditor of the Company.
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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.
CARLISLE COMPANIES INCORPORATED
By /s/ Xxxxxx X. Xxxx, Xx.
---------------------------------
Xxxxxx X. Xxxx, Xx.
Attest:
By /s/ Xxxxxx X. Xxxx
---------------------------------
Xxxxxx X. Xxxx
FLEET NATIONAL BANK, as Trustee
By /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxx
Attest:
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
82
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1997, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he/she is ________________ of Carlisle Companies Incorporated, one
of the corporations described in and which executed the foregoing instrument;
that he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he/she signed his/her name
thereto by like authority.
{NOTARIAL SEAL}
---------------------------------
Notary Public
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1997, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he/she is ________________ of Fleet National Bank, one of the
corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
{NOTARIAL SEAL}
---------------------------------
Notary Public
84
