1
EXHIBIT 4.1
------------------------
CENTEX CORPORATION
Issuer
AND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
Trustee
---------------
I N D E N T U R E
Dated as of October 1, 1998
---------------
SENIOR DEBT SECURITIES
(Issuable in Series)
------------------------
2
TIE-SHEET
of provisions of the Trust Indenture Act of 1939 with the Indenture, dated as
of October 1, 1998, between Centex Corporation and Chase Bank of Texas,
National Association, as Trustee:
Section Section
of Act of Indenture
------ ------------
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08 and 8.10(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01 and 6.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(c)
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(a)
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(d)
314 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(b)
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
315 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)(1)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)(2)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
i
3
Section Section
of Act of Indenture
------ ------------
316 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01 and 7.06
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
(a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
317 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.05
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.09
--------------------------
This tie-sheet is not a part of the Indenture as executed.
ii
4
TABLE OF CONTENTS*
Page
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Certain terms defined; other terms defined in Trust Indenture Act of
1939 or by reference therein in Securities Act of 1933, as
amended, to have meanings therein assigned . . . . . . . . . . . . . . . . . . 1
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate of a Firm of Independent Public Accountants . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Event of Default; default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Senior Debt Security; "outstanding" with reference to Senior
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Senior Debt Security Register;
Senior Debt Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . 4
Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Series Supplement or Supplement . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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*The Table of Contents, comprising pages i to xiv inclusive, is not part of
the Indenture.
iii
5
Page
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ARTICLE TWO.
ISSUE, DESCRIPTION, FORM, EXECUTION,
REGISTRATION OF TRANSFER AND
EXCHANGE OF SENIOR DEBT SECURITIES.
SECTION 2.01. Form of Senior Debt Securities and Certificate of Authentication . . . . . . . . . 5
SECTION 2.02. Amount unlimited; Senior Debt Securities issuable in Series;
Certain related provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.03. Authentication and delivery of Senior Debt Securities . . . . . . . . . . . . . . . 11
SECTION 2.04. Date of Senior Debt Securities and denominations . . . . . . . . . . . . . . . . . 11
SECTION 2.05. Execution of Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.06. Exchange of Senior Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Senior Debt Securities to be accompanied by proper instruments
of transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Charges upon exchange, registration or transfer or registration of
Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Restrictions on issue, registration of transfer or exchange at certain
times . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.07. Temporary Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.08. Mutilated, destroyed, lost or stolen Senior Debt Securities. . . . . . . . . . . . 14
SECTION 2.09. Cancellation of surrendered Senior Debt Securities. . . . . . . . . . . . . . . . . 15
SECTION 2.10. Provisions of the Indenture and Senior Debt Securities for the
sole benefit of the parties, holders of Senior Debt Securities . . . . . . . . 15
ARTICLE THREE.
PRIORITY OF SENIOR DEBT SECURITIES.
SECTION 3.01. Confirmation of subordination of certain prior debt. . . . . . . . . . . . . . . . 16
iv
6
Page
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ARTICLE FOUR.
REDEMPTION OF SENIOR DEBT
SECURITIES - SINKING FUND.
SECTION 4.01. Redemption prices of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . 16
Restriction on redemption of Senior Debt Securities. . . . . . . . . . . . . . . . 16
SECTION 4.02. Mailing of notice of redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Selection of Senior Debt Securities in case less than all Senior Debt
Securities to be redeemed. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.03. When Senior Debt Securities called for redemption become due
and payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.04. Sinking Fund; amounts and payment dates . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.05. Credits against Sinking Fund payments . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.06. Certificates and Senior Debt Securities to be delivered to the Trustee . . . . . . 19
SECTION 4.07. Cash to be delivered to the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.08. Application of Sinking Fund payments to redemption of Senior
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.09. Manner of redeeming Senior Debt Securities . . . . . . . . . . . . . . . . . . . . 20
Sinking Fund redemption price . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.10. Application of Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.11. Cancellation and destruction of redeemed Senior Debt Securities. . . . . . . . . . 21
SECTION 4.12. Sinking Fund moneys to be held as security during continuance of
Event of Default; exceptions. . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of principal of and premium, if any, and interest on
Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
v
7
Page
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SECTION 5.02. Maintenance of office or agency for registration, registration of
transfer, exchange and payment of Senior Debt Securities. . . . . . . . . . . 22
SECTION 5.03. Prohibition of extension of claims for interest. . . . . . . . . . . . . . . . . . 22
SECTION 5.04. Appointment to fill a vacancy in the office of Trustee . . . . . . . . . . . . . . 22
SECTION 5.05. (a) Duties of paying agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Company as paying agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
(c) Turnover to Trustee by paying agent or Company . . . . . . . . . . . . . . . . 23
(d) Holding sums in trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.06. Company to furnish annual compliance certificate . . . . . . . . . . . . . . . . . 23
ARTICLE SIX.
LISTS OF HOLDERS OF SENIOR DEBT
SECURITIES AND REPORTS BY THE
COMPANY AND THE TRUSTEE.
SECTION 6.01. Company to furnish Trustee information as to names and addresses of
holders of Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.02. (a) Trustee to preserve information as to names and addresses
of holders of Senior Debt Securities. . . . . . . . . . . . . . . . . . . 24
Trustee may destroy list of holders of Senior Debt Securities on
certain conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(b) Trustee to make information as to names and addresses of
holders of Senior Debt Securities available to "applicants"
or mail communications to holders of Senior Debt Securities
in certain circumstances. . . . . . . . . . . . . . . . . . . . . . . . . 24
Procedure if Trustee elects not to make information available to
"applicants" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(c) Company and Trustee not accountable for disclosure of information. . . . . . . 25
SECTION 6.03. (a) Annual and other reports to be filed by Company with Trustee. . . . . . . . . 25
(b) Additional information and reports to be filed with Trustee and
Securities and Exchange Commission . . . . . . . . . . . . . . . . . . . 26
(c) Summaries of information and reports to be transmitted by Company
to holders of Senior Debt Securities . . . . . . . . . . . . . . . . . . 26
SECTION 6.04. (a) Trustee to transmit reports to holders of Senior Debt Securities. . . . . . . 26
(b) Trustee to transmit certain further reports to holders of Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
vi
8
Page
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(c) To which holders of Senior Debt Securities reports are to be mailed . . . . . 28
(d) Copies of reports to be filed with stock exchanges and Securities
and Exchange Commission . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
OF SENIOR DEBT SECURITIES
IN EVENT OF DEFAULT.
SECTION 7.01. Events of Default defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Acceleration of maturity upon Event of Default. . . . . . . . . . . . . . . . . . . 29
Waiver of default and rescission of declaration of acceleration . . . . . . . . . . 30
Restoration of former position and rights upon curing of all defaults. . . . . . . 30
SECTION 7.02. Covenant of Company to pay to Trustee whole amount due on Senior
Debt Securities on default in payment of interest . . . . . . . . . . . . . . 30
Trustee may recover judgment for whole amount due on Senior Debt
Securities on failure of Company to pay . . . . . . . . . . . . . . . . . . . 31
Filing of proof of claim by Trustee in bankruptcy, reorganization,
receivership, or other judicial proceedings . . . . . . . . . . . . . . . . . 31
Trustee may enforce rights of action and assert claims without possession
of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Trustee may enforce rights vested in it by Indenture by appropriate judicial
proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.03. Application of moneys collected by Trustee . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.04. Limitation on suits by holders of Senior Debt Securities. . . . . . . . . . . . . . 33
SECTION 7.05. Remedies cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Delay or omission in exercise of rights not a waiver of default . . . . . . . . . . 34
SECTION 7.06. Rights of holders of majority in principal amount of Senior Debt Securities
of a Series to direct Trustee and to waive default . . . . . . . . . . . . . . 34
SECTION 7.07. Trustee to give notice of defaults known to it, but may withhold in certain
circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.08. Requirement of an undertaking to pay costs in certain suits under the
Indenture or against the Trustee. . . . . . . . . . . . . . . . . . . . . . . 35
vii
9
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ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Upon Event of Default occurring and continuing, Trustee shall exercise
powers vested in it, and use same degree of care and skill in their
exercise, as a prudent man would use . . . . . . . . . . . . . . . . . . . . . 35
Trustee not relieved from liability for negligence or willful misconduct
except as provided in this Section. . . . . . . . . . . . . . . . . . . . . . 36
(a) Prior to Event of Default and after the curing of all Events of
Default which may have occurred
(1) Trustee not liable except for performance of duties
specifically set forth. . . . . . . . . . . . . . . . . . . 36
(2) In absence of bad faith, Trustee may conclusively rely on
certificates or opinions furnished it hereunder,
subject to duty to examine the same if specifically
required to be furnished to it. . . . . . . . . . . . . . . 36
(b) Trustee not liable for error of judgment made in good faith by
responsible officer unless Trustee negligent. . . . . . . . . . . . . . . 36
(c) Trustee not liable for action or non-action in accordance with
direction of holders of majority in principal amount of Senior
Debt Securities of a Series . . . . . . . . . . . . . . . . . . . . . . . 36
Trustee not required to expend own funds . . . . . . . . . . . . . . . . . . . . . 36
SECTION 8.02. Subject to provisions of Section 8.01:
(a) Trustee may rely on documents believed genuine and properly signed
or presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(b) Sufficient evidence by certain instruments provided for . . . . . . . . . . . 37
(c) Trustee may act on Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . 37
(d) Trustee may require indemnity from holders of Senior Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(e) Trustee not liable for action in good faith believed to be authorized . . . . 37
(f) Trustee not bound to make any investigation of any document. . . . . . . . . . 37
(g) Trustee may act through agent. . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8.03. Trustee not liable for recitals in Indenture or in Senior Debt Securities. . . . . 38
No representations by Trustee as to validity of Indenture or of Senior
Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Trustee not accountable for use of Senior Debt Securities or proceeds . . . . . . . 38
SECTION 8.04. Trustee, paying agent or Senior Debt Security Registrar may own
Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 8.05. Moneys received by Trustee to be held in trust without interest. . . . . . . . . . 38
viii
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SECTION 8.06. Trustee entitled to compensation, reimbursement and indemnity . . . . . . . . . . . 38
Obligations to Trustee to be secured by lien prior to Senior Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.07. Right of Trustee to rely on Officers' Certificate where no other evidence
specifically prescribed . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.08. (a) Trustee acquiring conflicting interest to eliminate conflict or resign. . . . 40
(b) Notice to holders of Senior Debt Securities in case of failure to
comply with subsection (a) . . . . . . . . . . . . . . . . . . . . . . . 40
(c) Definition of conflicting interest . . . . . . . . . . . . . . . . . . . . . . 40
(d) Definition of certain terms. . . . . . . . . . . . . . . . . . . . . . . . . . 44
(e) Calculations of percentage of securities . . . . . . . . . . . . . . . . . . . 45
SECTION 8.09. Requirements for eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 8.10. (a) Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
(b) Removal of Trustee by Company or court on application of holders
of Senior Debt Securities. . . . . . . . . . . . . . . . . . . . . . . . 47
(c) Removal of Trustee by Company. . . . . . . . . . . . . . . . . . . . . . . . . 47
(d) Removal of Trustee by holders of majority in principal amount of
Senior Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . 48
(e) Time when resignation or removal of Trustee effective . . . . . . . . . . . . 48
(f) Company to deliver notice of appointment of successor trustee . . . . . . . . 48
SECTION 8.11. Acceptance by successor to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.12. Successor to Trustee by merger, consolidation or succession to business. . . . . . 49
SECTION 8.13. (a) Limitations on rights of Trustee as a creditor to obtain payment of
certain claims, within three months prior to default or during
default, or to realize on property as such creditor thereafter. . . . . . 50
(b) Certain creditor relationships excluded . . . . . . . . . . . . . . . . . . . 52
(c) Definition of certain terms. . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE NINE.
CONCERNING THE HOLDERS OF
SENIOR DEBT SECURITIES.
SECTION 9.01. Evidence of action by holders of Senior Debt Securities. . . . . . . . . . . . . . 54
SECTION 9.02. Proof of execution of instruments and of holding of Senior Debt
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ix
11
Page
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SECTION 9.03. Who may be deemed owners of Senior Debt Securities. . . . . . . . . . . . . . . . . 55
SECTION 9.04. Senior Debt Securities owned by Company or controlled or controlling
companies disregarded for certain purposes. . . . . . . . . . . . . . . . . . 55
SECTION 9.05. Instruments executed by holders of Senior Debt Securities bind future
holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE TEN.
MEETINGS OF HOLDERS OF
SENIOR DEBT SECURITIES.
SECTION 10.01. Purposes for which meetings may be called. . . . . . . . . . . . . . . . . . . . . 56
SECTION 10.02. Manner of calling meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.03. Call of meetings by Company or holders of Senior Debt Securities. . . . . . . . . . 57
SECTION 10.04. Who may attend and vote at meetings . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.05. Regulations may be made by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 57
Conduct of the meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Voting rights-adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.06. Manner of voting at meetings and record to be kept . . . . . . . . . . . . . . . . 58
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. Purposes for which supplemental indentures may be entered into without
consent of holders of Senior Debt Securities . . . . . . . . . . . . . . . . . 59
SECTION 11.02. Modification of Indenture with consent of holders of majority in principal
amount of Senior Debt Securities of a Series . . . . . . . . . . . . . . . . . 60
SECTION 11.03. Effect of supplemental indentures . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.04. Senior Debt Securities may bear notation of changes by supplemental
indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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ARTICLE TWELVE.
CONSOLIDATION, MERGER,
SALE OR CONVEYANCE.
Section 12.01. Consolidations and mergers of Company and conveyances permitted . . . . . . . . . . 62
Assumption of obligations of Company by successor company or
transferee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 12.02. Rights and duties of successor corporation . . . . . . . . . . . . . . . . . . . . 62
Appropriate changes may be made in form of Senior Debt Securities . . . . . . . . . 63
SECTION 12.03. Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS.
SECTION 13.01. Satisfaction and discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 13.02. Application by Trustee of funds deposited for payment of Senior Debt
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.03. Repayment of moneys held by paying agent . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.04. Repayment of moneys held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 13.05. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. Incorporators, stockholders, officers and directors of Company exempt
from individual liability . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Successors and assigns of Company bound by Indenture. . . . . . . . . . . . . . . . 66
SECTION 15.02. Acts of board, committee or officer of successor corporation valid. . . . . . . . . 66
SECTION 15.03. Surrender of powers by Company. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 15.04. Service of required notices or demands. . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.05. Notice to holders of Senior Debt Securities . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.06. Indenture and Senior Debt Securities to be construed in accordance with
the laws of the State of Texas. . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 15.07. Officers' Certificate and Opinion of Counsel to be furnished upon
applications or demands by the Company . . . . . . . . . . . . . . . . . . . . 68
Statements to be included in each certificate or opinion with respect to
compliance with a condition or covenant. . . . . . . . . . . . . . . . . . . . 68
SECTION 15.08. Payments due on Saturdays, Sundays and holidays . . . . . . . . . . . . . . . . . . 68
SECTION 15.09. Provisions required by Trust Indenture Act of 1939 to control. . . . . . . . . . . 68
SECTION 15.10. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 15.11. Indenture may be executed in counterparts. . . . . . . . . . . . . . . . . . . . . 68
SECTION 15.12. Computation of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 15.13. Acceptance of trusts by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 69
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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INDENTURE, dated as of October 1, 1998, between CENTEX CORPORATION, a
corporation duly organized and existing under the laws of the State of Nevada
(hereinafter sometimes referred to as the "Company"), and CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, a national banking association organized under the laws
of the United States of America (hereinafter sometimes referred to as the
"Trustee").
PRELIMINARY STATEMENT
The Company has duly authorized the execution and delivery of this
Indenture to provide for one or more series of Senior Debt Securities, issuable
as provided in this Indenture. Each series of such Senior Debt Securities will
be issued only under a separate Series Supplement to this Indenture duly
executed and delivered by the Company and the Trustee and limited to amounts
therein prescribed. All covenants and agreements made by the Company herein
are for the benefit and security of the holders of Senior Debt Securities. The
Company is entering into this Indenture, and the Trustee is accepting the trust
created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or which are by reference therein defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture as originally executed.
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day for at least
five days in each calendar week, whether or not published on Saturdays, Sundays
or legal holidays, and of general circulation in the Borough of Manhattan, The
City of New York. Whenever under the provisions of this Indenture two or more
publications of a notice or other communication are required or permitted, such
publications may be in the same or different newspapers.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company and duly authorized committees of such Board.
-1-
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Business Day:
The term "business day" shall mean any day except a Saturday, a Sunday
or a day on which banking institutions are legally authorized to close in The
City of New York, New York, or The City of Dallas, Texas.
Certificate of a Firm of Independent Public Accountants:
The term "Certificate of a Firm of Independent Public Accountants"
shall mean a certificate signed by an individual, partnership or corporation
engaged in accounting work who may be the accountants regularly employed by the
Company. Each such certificate shall include the statements provided for in
Section 15.07, if and to the extent required by the provisions thereof.
Company:
The term "Company" shall mean CENTEX CORPORATION, a Nevada
corporation, and, subject to the provisions of Article Twelve, shall also
include its successors and assigns.
Corporate trust office:
The term "corporate trust office" of the Trustee shall mean an office
or agency of the Trustee in the City of Dallas, Texas, designated by the
Trustee, from time to time, as the Trustee's corporate trust office for
purposes of this Indenture, which office at the date of the execution of this
Indenture is located at Chase Bank of Texas, National Association, 0000 Xxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000.
Event of Default; default:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of notice,
if any, therein designated.
Unless the context otherwise requires, the term "default" shall mean
any occurrence which is, or with notice or the lapse of time or both would
become, an Event of Default; provided that any occurrence which would become an
Event of Default pursuant to Section 7.01(c) hereof shall not be deemed a
default (but may nonetheless constitute an Event of Default upon notice and
lapse of time as provided in Section 7.01(c)) for purposes of the Indenture
until the expiration of five days after such occurrence shall first become
known, or in the exercise of reasonable care should become known, to an officer
of the Company. Notwithstanding the proviso clause of the immediately
preceding sentence, for purposes of Section 8.08 hereof, the term "default"
shall mean any occurrence which is, or with notice of the lapse of time or both
would become, an Event of Default.
-2-
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Holder:
The term "holder", "holder of Senior Debt Securities", or other
similar term, shall mean any person in whose name a Senior Debt Security shall
at the time be registered in the Senior Debt Security Register kept for that
purpose.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, as so amended or
supplemented.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 15.07, if and to the extent required by the provisions
thereof.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel who shall be satisfactory to the Trustee and may be counsel to
the Company. Each such opinion shall include the statements provided for in
Section 15.07, if and to the extent required by the provisions thereof.
Responsible Officer:
The term "responsible officer" when used with respect to the Trustee
shall mean the chairman or the vice-chairman of the board of directors, the
chairman of the executive committee of the board of directors, the president,
any vice president, any second or assistant vice president, the cashier, any
assistant cashier, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any senior trust officer or trust officer, or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
Senior Debt Security; "outstanding" with reference to Senior Debt Securities:
The term "Senior Debt Security" or "Senior Debt Securities" shall mean
a Senior Debt Security or Senior Debt Securities, as the case may be,
consisting of bonds, debentures, notes and/or other unsecured evidences of
indebtedness, authenticated and delivered under this Indenture.
The term "outstanding", when used with reference to Senior Debt
Securities, shall, subject to the provisions of Section 9.04, mean, as of any
particular time, all Senior Debt Securities authenticated and delivered by the
Trustee under this Indenture, except:
-3-
17
(a) Senior Debt Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Senior Debt Securities for the payment or redemption for
which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent), provided
that, if such Senior Debt Securities are to be redeemed, notice of
such redemption shall have been given as in Article Four provided or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Senior Debt Securities in lieu of or in substitution for
which other Senior Debt Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.08.
Senior Debt Security Register; Senior Debt Security Registrar:
The terms "Senior Debt Security Register" and "Senior Debt Security
Registrar" shall have the respective meanings specified in Section 2.06.
Series:
The term "Series" shall mean a separate series of Senior Debt
Securities issued pursuant to this Indenture and the related Series Supplement.
Series Supplement or Supplement:
The term "Series Supplement" or "Supplement" shall mean an indenture
supplemental to this Indenture, in substantially the form attached hereto as an
exhibit, that authorizes a particular Series.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" (except as herein otherwise
expressly provided or unless the context otherwise requires) shall mean the
Trust Indenture Act of 1939 as in force at the date of this Indenture as
originally executed.
Trustee:
The term "Trustee" shall mean Chase Bank of Texas, National
Association, and, subject to the provisions of Article Eight, shall also
include its successors and assigns.
-4-
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ARTICLE TWO.
ISSUE, DESCRIPTION, FORM, EXECUTION, REGISTRATION OF TRANSFER
AND EXCHANGE OF SENIOR DEBT SECURITIES.
SECTION 2.01. The Senior Debt Securities and the Trustee's
certificate of authentication are to be substantially in the forms set forth in
this Section 2.01, with such appropriate insertions, omissions, substitutions,
amendments, changes and other variations as are required or permitted by this
Indenture or any Series Supplement, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange on which the
Senior Debt Securities may be listed or as may, consistently herewith, be
determined by the officers executing such Senior Debt Securities as evidenced
by their execution of the Senior Debt Securities.
The definitive Senior Debt Securities shall be printed, lithographed
or engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by any Series
Supplement or the rules of any securities exchange on which the Senior Debt
Securities may be listed, all as determined by the officers executing such
Senior Debt Securities, as evidenced by their execution of such Senior Debt
Securities.
The form of Senior Debt Securities and the Trustee's certificate of
authentication are to be substantially in the following forms, respectively:
-5-
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[FORM OF FACE OF SENIOR DEBT SECURITY]
No. ____________________ [$]____________________
CENTEX CORPORATION
[SENIOR DEBT SECURITY]
CENTEX CORPORATION, a corporation duly organized and existing under
the laws of the State of Nevada (herein referred to as the "Company"), for
value received, hereby promises to pay to
____________________________________________ or registered assigns, the
principal sum of _____________________ [Currency of Issue and Payment] on
__________________ , ____, in such coin or currency of the [Country Whose
Currency is Designated] as at the time of payment is legal tender for the
payment of public and private debts, and to pay interest on said principal sum
at the rate per annum specified in the title of this [Senior Debt Security],
with respect to interest accrued from [insert accrual date] to the date of the
current interest payment, to the registered holder hereof as of the close of
business on the ________ day of the month next preceding the month in which an
interest payment is due, in like coin or currency, all at any office or agency
of the Company to be maintained by the Company pursuant to Section 5.02 of the
Indenture, which at all times shall include an office or agency in the City of
Dallas, Texas, such interest payments to be made, except as otherwise provided
in the Indenture hereinafter referred to, [insert interest frequency] on
[insert payment dates], in each year, commencing ____________, 199__, until
payment of said principal sum has been made or duly provided for; provided,
however, that payment of interest may be made at the option of the Company by
check mailed on or before such payment date to the address of the person
entitled thereto as such address shall appear on the Senior Debt Security
Register.
This [Senior Debt Security] shall be deemed to be a contract made
under the laws of the State of Texas, and for all purposes shall be construed
in accordance with the laws of said State.
Additional provisions of this [Senior Debt Security] are contained on
the reverse hereof and such provisions shall for all purposes have the same
effect as though fully set forth at this place.
This [Senior Debt Security] shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
signed by the Trustee under the Indenture.
-6-
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IN WITNESS WHEREOF, CENTEX CORPORATION has caused this instrument to
be signed in its corporate name by the facsimile signature of its President or
a Vice President and by its Secretary or an Assistant Secretary by his
signature or a facsimile thereof, and a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
Dated:
CENTEX CORPORATION
[Seal]
By:
-------------------------------------
[Title]
ATTEST:
----------------------------------------
[Title]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Senior Debt Securities] to which reference is made
in the within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------------
Authorized Signature
-7-
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[FORM OF REVERSE OF SENIOR DEBT SECURITY]
CENTEX CORPORATION
This [Senior Debt Security] is one of a duly authorized issue of
Senior Debt Securities of the Company issued and to be issued in one or more
Series, and this [Senior Debt Security] is one of the Series of Senior Debt
Securities designated as its [Senior Debt Securities] (herein referred to as
the [Senior Debt Securities]), limited to the aggregate principal amount of
__________________________________________ Million [Currency of Issue and
Payment] ([$]____ ______________), all issued or to be issued under and
pursuant to an indenture dated as of October 1, 1998 (herein referred to as the
"Indenture"), duly executed and delivered by the Company to Chase Bank of
Texas, National Association (referred to herein as the "Trustee"), to which
Indenture and all indentures supplemental thereto (including the Series
Supplement dated as of ________, 199_ which authorizes the [Senior Debt
Securities]) reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Senior Debt Securities of each
particular Series and the terms upon which the Senior Debt Securities of each
Series are, and are to be, authenticated and delivered. All terms used in this
Senior Debt Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture. As provided in the Indenture, the Senior
Debt Securities are issuable in Series which may vary as in the Indenture
provided or permitted.
[The indebtedness evidenced by the [Senior Debt Securities] is, to the
extent and in the manner provided in the Indenture and the Series Supplement,
senior in right of payment to certain indebtedness of the Company.]
In case an Event of Default shall have occurred and be continuing with
respect to the [Senior Debt Securities], the principal hereof may be declared,
and upon such declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the Indenture. The
Indenture provides that in certain events such declaration and its consequences
may be waived by the holders of a majority in aggregate principal amount of the
[Senior Debt Securities] then outstanding. An Event of Default with respect to
the Senior Debt Security of any other Series issued under the Indenture,
including the failure to make any payment of principal or interest with respect
thereto when and as due, will not be an Event of Default with respect to the
[Senior Debt Securities].
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the [Senior Debt Securities] at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the holders of the [Senior Debt
Securities]; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any [Senior Debt Securities], or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable on the redemption thereof,
without the consent of the holder of each [Senior Debt Security] so affected,
or (ii) reduce the aforesaid percentage of [Senior Debt Securities], the
consent of the
-8-
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holders of which is required for any such supplemental indenture, without the
consent of the holders of all [Senior Debt Securities] then outstanding. It is
also provided in the Indenture that the holders of a majority in aggregate
principal amount of the [Senior Debt Securities] at the time outstanding may on
behalf of the holders of all the [Senior Debt Securities] waive any past
default under the Indenture and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on any of the
[Senior Debt Securities]. Any such consent or waiver by the holder of this
[Senior Debt Security] (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this [Senior Debt Security] and of any [Senior Debt Security] issued in
exchange or substitution herefor, whether or not any notation of such consent
or waiver is made upon this [Senior Debt Security].
No reference herein to the Indenture and no provision of this [Senior
Debt Security] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this [Senior Debt Security] at the place, at
the respective times, at the rate and in the currency herein prescribed.
The [Senior Debt Securities] are issuable in registered form in
denominations of $_____ and any integral multiple of $_____.
[As provided in the Indenture, the [Senior Debt Securities] may be
redeemed, at the option of the Company, as a whole or from time to time in part
(otherwise than through the operation of the Sinking Fund), at any time prior
to maturity, upon the notice referred to below, [on terms specified in the
Series Supplement]. Notwithstanding the foregoing, no such redemption may be
made prior to ___________, 19__, directly or indirectly from or in anticipation
of moneys borrowed by the Company at an interest cost which is less than
[interest rate of the [Senior Debt Securities] as specified in the Series
Supplement].]
[The [Senior Debt Securities] are entitled to the benefits of a
Sinking Fund, operation of the provisions of which is required to begin on
_________________, 19__ as provided in the Series Supplement. The [Senior Debt
Securities] are subject to redemption (on notice as set forth below) through
the operation of the Sinking Fund at a redemption price equal to the principal
amount thereof, together with accrued interest to the date fixed for
redemption.]
Notice of redemption shall be given by mailing by first-class mail a
notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to the holders of [Senior Debt Securities] to be
redeemed to their last addresses as they shall appear upon the Senior Debt
Security Register for the [Senior Debt Securities], all as provided in the
Indenture.
Upon due presentment for registration of transfer of this [Senior Debt
Security] at any designated office or agency of the Company to be maintained by
the Company pursuant to Section 5.02 of the Indenture, which at all times shall
include an office or agency in the City of Dallas, Texas, a new [Senior Debt
Security] or [Senior Debt Securities] of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
herefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith, and the [Senior Debt Securities] may in like manner be exchanged
-9-
23
for one or more new [Senior Debt Securities] of other authorized denominations
but of the same aggregate principal amount.
The Company, the Trustee, any paying agent and any Senior Debt
Security Registrar (as defined in the Indenture) for the [Senior Debt
Securities] may deem and treat the registered holder hereof as the absolute
owner of this [Senior Debt Security] (whether or not this [Senior Debt
Security] shall be overdue and notwithstanding any notation of ownership or
other writing hereon made by anyone other than the Company or any such Senior
Debt Security Registrar), for the purpose of receiving payment hereof or on
account hereof and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any such Senior Debt Security Registrar shall
be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this [Senior Debt Security], or for any claim
based hereon or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
--------------------
SECTION 2.02. The aggregate principal amount of Senior Debt
Securities which may be authenticated and delivered under this Indenture is
unlimited.
The Senior Debt Securities may, at the election of and as authorized
by the Board of Directors, be issued in one or more Series, and a particular
Series shall be designated as the Board of Directors may determine. Each
Senior Debt Security shall bear upon its face the designation so selected for
the Series for which it belongs. All Senior Debt Securities of the same Series
shall be identical in all respects except for the denominations thereof.
Each Series of Senior Debt Securities shall be created by a Series
Supplement authorized by the Board of Directors in establishing the terms and
provisions of such Series. The several Series may differ as between Series, in
respect of any of the following matters: (1) designation of the Series; (2)
the maximum aggregate principal amount of the Series; (3) accrual date; (4)
interest rate; (5) stated maturity of principal; (6) payment dates; (7)
authorized denominations; (8) currency of issue and payment; (9) redemption
dates; (10) provisions relating to redemption of the related Series on an
optional or mandatory basis by the Company or pursuant to a sinking fund; and
(11) any other provisions expressing or referring to the terms and conditions
upon which the Senior Debt Securities of that Series are to be issued under
this Indenture which are not in conflict with the provisions of this Indenture,
or any provisions expressly amending or modifying the terms of this Indenture
with respect to the Series of Senior Debt Securities to which such Series
Supplement relates. Each Series of Senior Debt Securities shall rank equally
in right of payment with other outstanding Series of Senior Debt Securities.
-10-
24
In authorizing issuance of any Series, the Board of Directors shall
determine and specify all matters in respect of the Senior Debt Securities of
such Series set forth in clauses (1) to (11) inclusive and shall also determine
and specify the form of Senior Debt Securities of such Series.
SECTION 2.03. The Senior Debt Securities shall be executed by the
Company and be delivered to the Trustee for authentication, and the Trustee
shall thereupon, or from time to time thereafter, authenticate and deliver said
Senior Debt Securities to and upon the written order of the Company, signed by
its President or a Vice President and by its Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary, without any further action by the Company.
SECTION 2.04. The Senior Debt Securities shall be issuable as
registered Senior Debt Securities without coupons in denominations prescribed
by the terms of the Series Supplement creating the particular Series. Each
Senior Debt Security shall be dated the date of its authentication, shall bear
interest from the applicable date, and shall be payable on the dates, as
prescribed by the terms of the Series Supplement creating the particular
Series.
The person in whose name any Senior Debt Security is registered at the
close of business on any record date (as hereinafter defined) with respect to
any interest payment date shall be entitled to receive the interest payable on
such interest payment date (subject to the provisions of Article Four in the
case of any Senior Debt Security or Senior Debt Securities, or portion thereof,
redeemed on a date subsequent to the record date and on or prior to such
interest payment date), except if and to the extent the Company shall default
in the payment of the interest due on such interest payment date, in which case
such defaulted interest shall be paid to the persons in whose names outstanding
Senior Debt Securities are registered on a subsequent special record date
established by notice given by mail by or on behalf of the Company to the
holders of Senior Debt Securities not less than 15 days preceding such special
record date, which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment. The term "record date" as used with
respect to any interest payment date shall mean the day of the calendar month
prescribed by the terms of the Series Supplement creating the particular Series
preceding the day on which such interest payment date falls or, in the case of
defaulted interest, the close of business on any special record date
established as hereinabove provided.
The principal of, and premium, if any, and interest on, the Senior
Debt Securities shall be payable at the office or agency of the Company
designated for that purpose in the City of Dallas, Texas, and any other office
or agency of the Company designated for that purpose; provided, however, that
interest may be payable at the option of the Company by check mailed to the
address of the person entitled thereto as such address shall appear on the
Senior Debt Security Register.
SECTION 2.05. The Senior Debt Securities shall be signed manually or
by facsimile signature on behalf of the Company by its President or a Vice
President under its corporate seal attested by the manual or facsimile
signature of its Secretary or an Assistant Secretary. The seal of the Company
may be in the form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the Senior Debt
Securities.
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Only such Senior Debt Securities as shall bear thereon a certificate
of authentication substantially in the form hereinabove recited, manually
executed by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Senior Debt Security executed by the Company shall be conclusive evidence
that the Senior Debt Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Senior Debt Securities shall cease to be such officer before the Senior Debt
Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Senior Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Senior Debt Securities had not ceased to be such officer
of the Company; and any Senior Debt Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Senior
Debt Security, shall be the proper officers of the Company, although at the
date of the execution of this Indenture any such person was not an officer.
SECTION 2.06. The Senior Debt Securities may be exchanged for a like
aggregate principal amount of Senior Debt Securities of other authorized
denominations of a like Series. Senior Debt Securities to be exchanged shall
be surrendered at any office or agency to be maintained by the Company in
accordance with the provisions of Section 5.02, and the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor the Senior
Debt Security or Senior Debt Securities which the holder making the exchange
shall be entitled to receive.
The Company shall keep or cause to be maintained at said office or
agency a register (herein sometimes referred to as the "Senior Debt Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register Senior Debt Securities and shall register
the transfer of Senior Debt Securities as in this Article Two provided. For
the purposes of registration, exchange or registration of transfer of Senior
Debt Securities, the Trustee is hereby appointed Senior Debt Security
Registrar. Upon surrender for registration of transfer of any Senior Debt
Security at said office or agency, the Company shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Senior Debt Security or Senior Debt Securities in a like aggregate
principal amount and of a like Series. At all reasonable times the Senior Debt
Security Register shall be open for inspection by the Trustee. No transfer of
any Senior Debt Security shall be valid unless made at said office or agency.
All Senior Debt Securities presented or surrendered for registration
of transfer, exchange, redemption or payment shall (if so required by the
Company or the Trustee) be accompanied by a written instrument or instruments
of transfer, in form satisfactory to the Company and the Trustee, duly executed
by the registered holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Senior Debt Securities, or issue of new Senior Debt Securities in
case of partial redemption, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
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For the Senior Debt Securities of a Series which has a redemption
provision, the Company shall not be required (i) to issue, register the
transfer of, or exchange any Senior Debt Security during a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
the Senior Debt Securities selected for redemption and ending on the day of
such mailing, or (ii) to register the transfer of or exchange any Senior Debt
Security so selected for redemption in whole or in part, except the unredeemed
portions of Senior Debt Securities being redeemed in part.
SECTION 2.07. Pending the preparation of definitive Senior Debt
Securities, the Company may execute, and the Trustee shall authenticate and
deliver, temporary Senior Debt Securities (printed, lithographed or
typewritten), of any denomination, and substantially in the form of the
definitive Senior Debt Securities, but with such omissions, insertions and
variations as may be appropriate for temporary Senior Debt Securities, all as
may be determined by the Company. Temporary Senior Debt Securities may be
issued without a recital of any specific redemption prices as prescribed by the
terms of the Series Supplement creating the particular Series and may contain
such reference to any provisions of this Indenture as may be appropriate.
Every temporary Senior Debt Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Senior Debt Securities.
The Company shall execute and furnish definitive Senior Debt Securities of the
same Series as soon as practicable, and thereupon any or all temporary Senior
Debt Securities of such Series may be surrendered in exchange therefor at the
corporate trust office of the Trustee, and the Trustee shall authenticate and
deliver in exchange for such temporary Senior Debt Securities a like aggregate
principal amount of definitive Senior Debt Securities of the same Series.
Until so exchanged, the temporary Senior Debt Securities of such Series shall
be entitled to the same benefits under this Indenture as definitive Senior Debt
Securities of the same Series authenticated and delivered hereunder.
SECTION 2.08. In case any temporary or definitive Senior Debt
Security shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and the Trustee shall authenticate and deliver, a
new Senior Debt Security of a like Series, in exchange and substitution for the
mutilated Senior Debt Security or in lieu of and substitution for the Senior
Debt Security destroyed, lost or stolen. In every case, the applicant for a
substituted Senior Debt Security shall furnish to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Company and to the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Senior Debt Security and of the
ownership thereof. The Trustee may authenticate any such substituted Senior
Debt Security and deliver the same upon the request or authorization of the
Company. Upon the issuance of any substituted Senior Debt 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 connected therewith, including fees and expenses of the Trustee. In
case any Senior Debt Security which has matured or is about to mature or has
been called for redemption shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Senior Debt Security
of a like Series, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Senior Debt Security) if the
applicant for such payment shall furnish the Company and the Trustee with such
security or indemnity as may be required by them to save each of them harmless,
and, in case of destruction, loss or theft, evidence
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to the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Senior Debt Security and of the ownership thereof.
Every substituted Senior Debt Security issued pursuant to the
provisions of this Section 2.08 upon evidence that any Senior Debt Security is
destroyed, lost or stolen shall, with respect to such Senior Debt Security,
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Senior Debt Security shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Senior Debt Securities of the same
Series duly issued hereunder. All Senior Debt Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Senior Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.09. All Senior Debt Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be canceled by it, and no Senior Debt
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. On request of the Company, the Trustee
shall deliver to the Company canceled Senior Debt Securities held by the
Trustee; provided, however, that the Trustee may at any time destroy any
canceled Senior Debt Securities and deliver to the Company a certificate of
such destruction. If the Company shall acquire any of the Senior Debt
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Senior Debt Securities
unless and until the same are delivered to the Trustee or surrendered to the
Trustee for cancellation.
SECTION 2.10. Nothing in this Indenture or in the Senior Debt
Securities, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the holders of
the Senior Debt Securities of a Series, any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all its covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Senior Debt Securities of such Series.
ARTICLE THREE.
PRIORITY OF SENIOR DEBT SECURITIES.
SECTION 3.01. Unless otherwise specified in the related Series
Supplement, the Company, for itself, its successors and assigns, confirms and
agrees that, notwithstanding any other provisions of the Senior Debt
Securities, this Indenture or any other agreement under which the Senior Debt
Securities are outstanding, the payment of the principal of, and the premium or
prepayment charge, if any, sinking funds and interest on (i) the Company's
$100,000,000 aggregate principal amount of 8-3/4% Subordinated Xxxxxxxxxx xxx
Xxxxx 0, 0000, (xx) the Company's $100,000,000 aggregate principal amount of
7-3/8% Subordinated Debentures due June 1, 2005, and (iii) any other debt
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securities issued or to be issued under and pursuant to the Indenture described
below in this Section 3.01, are expressly subordinated, to the extent and in
the manner set forth in the Indenture dated as of March 12, 1987, as
supplemented by the Series Supplement dated as of March 12, 1987, and the
Series Supplement dated as of June 9, 1995, all between the Company and Texas
Commerce Bank National Association, to the prior payment in full of the Senior
Debt Securities.
ARTICLE FOUR.
REDEMPTION OF SENIOR DEBT SECURITIES - SINKING FUND.
SECTION 4.01. Subject to any contrary provisions set forth in the
related Series Supplement, the Company may, at its option, at any time prior to
maturity, redeem all, or from time to time any part, of the Senior Debt
Securities of a Series, otherwise than through the operation of the Sinking
Fund provided for in this Article Four, at the redemption prices and upon the
conditions, if any, applicable thereto, as permitted by the related Series
Supplement for redemption otherwise than through the operation of the Sinking
Fund. The election of the Company to exercise such option shall be evidenced
by an Officers' Certificate.
Unless otherwise specified in the related Series Supplement, the
Company may not, however, redeem any of the Senior Debt Securities of a Series
pursuant to such option prior to the time prescribed by the terms of the Series
Supplement creating the particular Series, directly or indirectly from or in
anticipation of money borrowed having an interest cost to the Company of less
than the interest rate applicable to the Senior Debt Securities of such Series.
In the event the Company shall optionally redeem any Senior Debt Securities of
a Series prior to such time, the Company shall deliver to the Trustee an
Officers' Certificate stating that such redemption will comply with this
requirement.
SECTION 4.02. In case the Company shall desire to exercise such right
to redeem all or, as the case may be, any part of the Senior Debt Securities in
accordance with the right reserved so to do, it shall so notify the Trustee in
writing and it shall give notice of such redemption to holders of the Senior
Debt Securities to be redeemed as hereinafter in this Section 4.02 provided.
Notice of redemption shall be given to the holders of Senior Debt
Securities to be redeemed as a whole or in part by mailing by first-class mail
a notice of such redemption not less than 20 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Senior Debt Security Register, but failure to give such notice by mail to the
holders of any Senior Debt Security, or any defect therein, shall not affect
the validity of the proceedings for the redemption of any other Senior Debt
Security.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Senior Debt Securities are to be
redeemed, and shall state that payment of the redemption price of the Senior
Debt Securities to be redeemed will be made at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 5.02,
upon presentation and surrender of such Senior Debt Securities, that interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon
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will cease to accrue. If less than all the Senior Debt Securities are to be
redeemed, the notice of redemption shall specify the Senior Debt Securities to
be redeemed as a whole or in part. In case any Senior Debt Security is to be
redeemed in part only, the notice which relates to such Senior Debt Security
shall state the portion of the principal amount thereof to be redeemed, and
shall state that on and after the redemption date, upon surrender of such
Senior Debt Security, a new Senior Debt Security or Senior Debt Securities of a
like Series in principal amount equal to the unredeemed portion thereof will be
issued.
If less than all the Senior Debt Securities of a Series are to be
redeemed, the Company shall give the Trustee at least 45 days' written notice
in advance of the date fixed for redemption as to the aggregate principal
amount of Senior Debt Securities of such Series to be redeemed, and thereupon
the Trustee shall select, by random lot, the particular Senior Debt Securities
of such Series to be redeemed in whole or in part and shall thereafter promptly
notify the Company in writing of the numbers of the Senior Debt Securities of
such Series or portions thereof to be redeemed. The selection of Senior Debt
Securities to be redeemed may provide for the selection of portions (equal to
$1,000 (unless otherwise provided in the related Series Supplement) or a
multiple thereof) of the principal of Senior Debt Securities of a denomination
larger than $1,000 (unless otherwise provided in the related Series
Supplement). The Senior Debt Securities (or portions thereof) so selected
shall be deemed duly designated for redemption for all purposes of this
Indenture. For the purposes of such selection, the Company will close the
Senior Debt Security Register with respect to such Series for the purposes of
exchange and transfer of Senior Debt Securities of such Series, for a period
not exceeding 15 days.
SECTION 4.03. If the giving of notice of redemption shall have been
completed as above provided, the Senior Debt Securities or portions of Senior
Debt Securities specified in such notice shall become due and payable on the
date and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after such date fixed for redemption (unless the Company shall default in the
payment of such Senior Debt Securities at the redemption price, together with
interest accrued to the date fixed for redemption) interest on the Senior Debt
Securities or portions of Senior Debt Securities so called for redemption shall
cease to accrue. On presentation and surrender of such Senior Debt Securities
at the place stated in said notice, the said Senior Debt Securities shall be
paid and redeemed by the Company at the applicable redemption price, together
with interest accrued to the date fixed for redemption.
Upon presentation of any Senior Debt Security which is redeemed in
part only, the Company shall execute, and the Trustee shall authenticate and
deliver, at the expense of the Company, a new Senior Debt Security or Senior
Debt Securities of a like Series in principal amount equal to the unredeemed
portion of the Senior Debt Security so presented. Prior to the date fixed for
the redemption of any Senior Debt Securities as provided in this Article Four,
the Company shall deposit in trust with the Trustee or with any paying agent,
or if and to the extent that it shall be acting as its own paying agent, the
Company shall set aside, segregate and hold in trust, funds sufficient to
redeem the Senior Debt Securities or portions thereof to be redeemed on such
date, at the applicable redemption price, together with interest accrued to the
date fixed for redemption.
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SECTION 4.04. As and for a Sinking Fund for the retirement of Senior
Debt Securities of a Series, if as set forth in the related Series Supplement
the Company so elects to include a Sinking Fund obligation in the terms of the
Senior Debt Securities of a particular Series, the Company covenants that on or
before the applicable date or dates set forth in the Series Supplement, it will
pay to the Trustee a sum in cash sufficient to retire by redemption at the
Sinking Fund redemption price the principal amount of the Senior Debt
Securities of such Series on the date as prescribed by the terms of the Series
Supplement creating the particular Series; provided, however, that in any such
year in which such day is not a business day, such payment shall be made to the
Trustee on the last business day preceding such day. In any year, the Company
may, at its sole option, increase the payment required to be made pursuant to
this Section 4.04 for such year by an amount as prescribed by the terms of such
Series Supplement; provided that such increase shall be an integral multiple of
$1,000 (unless otherwise provided in the related Series Supplement).
All cash paid to the Trustee pursuant to the provisions of this
Section 4.04 shall be applied in accordance with the provisions of this Article
Four.
SECTION 4.05. In lieu of making all or any part of any mandatory
Sinking Fund payment as required pursuant to Section 4.04 in cash, the Company
may (a) deliver to the Trustee for cancellation Senior Debt Securities of such
Series theretofore issued and acquired by the Company at any time prior to the
first day of the month next preceding the due date of such payment and not
theretofore made the basis for the reduction of a Sinking Fund payment, or (b)
deliver to the Trustee an Officers' Certificate setting forth the principal
amount of any Senior Debt Securities of such Series theretofore redeemed and
paid pursuant to the provisions of this Article Four (otherwise than through
the operation of the mandatory Sinking Fund), or which have been duly called
for redemption (otherwise than through the operation of the mandatory Sinking
Fund) and the redemption price of which, together with the accrued interest
thereon, shall have been deposited in trust for that purpose, as in this
Article Four provided, and in either case not theretofore made the basis of the
reduction of a Sinking Fund payment; and in each such case the principal amount
of Senior Debt Securities of such Series required by Section 4.04 to be
redeemed shall be reduced to the extent of the principal amount of the Senior
Debt Securities of such Series so delivered or referred to in such certificate.
SECTION 4.06. On or before the applicable date specified in the
Series Supplement of each year in which the Company is obligated to make a
Sinking Fund payment, the Company shall deliver to the Trustee:
(a) An Officer's Certificate stating:
(i) the manner in which the Company will fulfill its
Sinking Fund obligation under this Article Four for that year;
(ii) the amount of cash, if any, which the Company will
pay to the Trustee on or before the next succeeding Sinking Fund
payment date;
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(iii) the principal amount of Senior Debt Securities of
such Series, if any, which the Company will surrender to the Trustee
for cancellation in lieu of the payment of cash, and that such Senior
Debt Securities were theretofore issued and acquired by the Company
prior to said Sinking Fund payment date and have not theretofore been
made the basis for the reduction of a Sinking Fund payment; and
(iv) the principal amount of any Senior Debt Securities of
such Series set forth in a certificate of the character described in
clause (b) of Section 4.05, if any such certificate is to be
concurrently delivered to the Trustee;
(b) The Senior Debt Securities, if any, referred to in Section
4.06(a)(iii); and
(c) The certificate, if any, referred to in Section 4.06(a)(iv).
SECTION 4.07. On or before the applicable date specified in the
Series Supplement or, if such day is not a business day, on the last business
day preceding such date of each year in which the Company is obligated to make
a Sinking Fund payment, the Company shall pay to the Trustee the amount of
cash, if any, payable on or before such Sinking Fund payment date, after giving
credit for the principal amount of any Senior Debt Securities delivered
pursuant to clause (a) of Section 4.05 or referred to in any certificate
delivered pursuant to clause (b) of Section 4.05, in respect of such Sinking
Fund payment date.
SECTION 4.08. In the event that the amount of cash specified in the
certificate given pursuant to Section 4.06, plus the amount, if any, of cash
then held pursuant to Section 4.10, is in excess of one percent of the required
sinking fund payment, the Trustee shall, as soon as practicable after the
receipt of such certificate, take the action herein specified to call for
redemption, at the Sinking Fund redemption price, on the next succeeding
Sinking Fund payment date, an amount of Senior Debt Securities of such Series
sufficient to exhaust such funds as nearly as may be.
SECTION 4.09. The Senior Debt Securities to be redeemed from time to
time as provided in Section 4.04 or Section 4.08 shall be selected by the
Trustee for redemption in the manner provided in Section 4.02 and notice
thereof shall be given by the Trustee to the Company, and the Company hereby
irrevocably authorizes the Trustee, in the name of and at the expense of the
Company, to give notice on behalf of the Company of the call of such Senior
Debt Securities, all in the manner and with the effect in this Article Four
specified, except that, in addition to the matters required to be included in
such notice by Section 4.02, such notice shall also state that the Senior Debt
Securities therein designated for redemption are to be redeemed through
operation of the Sinking Fund. Such Senior Debt Securities shall be redeemed
and paid in accordance with such notice in the manner and with the effect
provided in Sections 4.02 and 4.03.
Senior Debt Securities redeemed through operation of the Sinking Fund
are to be redeemed at the redemption price prescribed by the terms of the
Series Supplement creating the particular Series for redemption through
operation of the Sinking Fund, such price being sometimes referred to herein as
the Sinking Fund redemption price.
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SECTION 4.10. In the event that at the time of the receipt of the
Officers' Certificate required by Section 4.06 the sum of the amount of cash
required to be paid to the Trustee pursuant to Section 4.07 and the amount of
cash then in the hands of the Trustee in the Sinking Fund and not required for
payment of Senior Debt Securities previously called for redemption or purchased
through operation of the Sinking Fund, is one percent of the amount of the
required Sinking Fund payment or less, such moneys shall not, unless requested
by the Company, in said Officers' Certificate, be applied to the redemption of
Senior Debt Securities, but shall be retained by the Trustee in the manner
directed by the Company in writing and added to the Sinking Fund payment to be
made in cash on the next succeeding Sinking Fund payment date, or, upon request
of the Company, shall be applied by the Trustee, to the extent practicable,
prior to the next succeeding Sinking Fund payment date to the purchase of
Senior Debt Securities of such Series, by public or private purchase in the
open market or otherwise, at prices (excluding accrued interest and brokerage
commissions) not exceeding the Sinking Fund redemption price.
SECTION 4.11. All Senior Debt Securities surrendered to or purchased
by the Trustee, pursuant to the provisions of this Article Four, shall be
forthwith canceled by it, and at the written direction of the Company, such
Senior Debt Securities shall be disposed of by the Trustee, which shall deliver
its certificate of disposition thereof to the Company.
SECTION 4.12. The Trustee shall not redeem any Senior Debt Securities
of a Series with Sinking Fund moneys or mail any notice of redemption of Senior
Debt Securities of a Series during the continuance of any Event of Default with
respect to the Senior Debt Securities of such Series, except that where notice
of redemption of any Senior Debt Securities shall have been mailed prior to the
occurrence of such Event of Default, the Trustee shall redeem such Senior Debt
Securities provided funds are deposited with it for such purpose. Except as
aforesaid, any moneys in the Sinking Fund at such time, and any moneys
thereafter paid into the Sinking Fund, shall during the continuance of an Event
of Default be held as security for the payment of all the Senior Debt
Securities; provided, however, that in case such Event of Default shall have
been waived as permitted by this Indenture or otherwise cured, such moneys
shall thereafter be held and applied in accordance with the provisions of this
Article Four.
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. The Company will duly and punctually pay or cause to be
paid the principal of and premium, if any, and interest on each of the Senior
Debt Securities at the place, at the respective times and in the manner
provided in the Senior Debt Securities.
SECTION 5.02. As long as any of the Senior Debt Securities remain
outstanding, the Company will maintain in the City of Dallas, Texas, an office
or agency where the Senior Debt Securities may be presented for registration of
transfer and exchange as in this Indenture provided, and where the Senior Debt
Securities may be presented for payment, and where notices or demands to or
upon the Company in respect of the Senior Debt Securities or of this Indenture
may be served. Such an office or agency may also be maintained by the Company,
at its option, in other locations. Until otherwise
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designated by the Company in a written notice to the Trustee, such office or
agency for purposes of registration of transfer and exchange and presentation
for payment shall be the corporate trust office of the Trustee. In case the
Company shall fail to maintain such office or agency or shall fail to give such
notice of the location or of any change in the location thereof, notices or
demands may be served at the corporate trust offices of the Trustee.
SECTION 5.03. In order to prevent any accumulation of claims for
interest after maturity thereof, the Company will not directly or indirectly
extend or consent to the extension of the time for the payment of any claim for
interest on any of the Senior Debt Securities of a Series and will not directly
or indirectly be a party to or approve any such arrangement by the purchase or
funding of said claims for interest or in any other manner. No claim for
interest, the time of payment of which shall have been so extended or which
shall have been so purchased or funded, shall be entitled, in case of an Event
of Default with respect to the Senior Debt Securities of such Series hereunder,
to the benefit of this Indenture except after the prior payment in full of the
principal of all the Senior Debt Securities of such Series and premiums, if
any, and of all claims for interest not so extended, purchased or funded;
provided, however, that this Section 5.03 shall not apply in any case where an
extension shall be made pursuant to a plan proposed by the Company to the
holders of all the Senior Debt Securities of such Series then outstanding.
SECTION 5.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 8.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 5.05. (a) The Trustee is appointed the initial paying
agent. If the Company shall appoint a paying agent other than the Trustee, it
will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.05:
(1) that it will hold all sums held by it as such agent
for the payment of the principal of and premium, if any, and interest
on the Senior Debt Securities of a Series (whether such sums have been
paid to it by the Company or by any other obligor on the Senior Debt
Securities) in trust for the benefit of the holders of the Senior Debt
Securities of such Series,
(2) that it will give the Trustee written notice of any
default by the Company (or by any other obligor on the Senior Debt
Securities of any Series) in making any payment of the principal of or
premium, if any, or interest on the Senior Debt Securities of a Series
when the same shall be due and payable, and
(3) that it will, at any time during the continuance of
any such default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of and premium, if any, or interest on
the Senior Debt Securities of a Series, set
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aside, segregate and hold in trust for the benefit of the holders of the Senior
Debt Securities of such Series a sum sufficient to pay such principal and
premium, if any, or interest so becoming due. The Company will promptly notify
the Trustee in writing of any failure by it to take such action or the failure
by any other obligor on the Senior Debt Securities of such Series to make any
payment of the principal of or premium, if any, or interest on the Senior Debt
Securities of such Series when the same shall be due and payable.
(c) Anything in this Section 5.05 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 5.05, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 5.05 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 5.05 is subject
to the provisions of Section 13.03 and 13.04.
SECTION 5.06. On or before the 90th day after the end of the
Company's fiscal year beginning with the fiscal year ended March 31, 1999, the
Company will file with the Trustee a certificate from its principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture.
ARTICLE SIX.
LISTS OF HOLDERS OF SENIOR DEBT SECURITIES AND
REPORTS BY THE COMPANY AND THE TRUSTEE.
SECTION 6.01. The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee within 60 days after each interest
payment date and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list in such
form as the Trustee may reasonably require containing all information in the
possession or control of the Company, or any of its paying agents, other than
the Trustee, as to the names and addresses of the holders of the Senior Debt
Securities of any Series obtained since the date as of which the next previous
list, if any, was furnished with respect to such Series; but so long as the
Trustee is the Senior Debt Security Registrar no such list shall be required to
be furnished. Any such list may be dated as of a date not more than 15 days
prior to the time such information is furnished or caused to be furnished, and
need not include information received after such date.
SECTION 6.02. (a) The Trustee shall preserve, in as current a form as
reasonably practicable, all information as to the names and addresses of the
holders of Senior Debt Securities (1) contained in the most recent list
furnished to it as provided in Section 6.01 and (2) received by it in the
capacity of Senior Debt Security Registrar or of paying agent (if so acting)
hereunder. The Trustee may destroy any list furnished to it pursuant to
Section 6.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Senior Debt Securities
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each
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such applicant has owned a Senior Debt Security for a period of at least six
months preceding the date of such application, and such application states that
the applicants desire to communicate with other holders of Senior Debt
Securities of a particular Series (in which case the applicants must all hold
Senior Debt Securities of such Series) or with holders of all Senior Debt
Securities with respect to their rights under this Indenture or under the
Senior Debt Securities, and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 6.02, or
(2) inform such applicants as to the approximate number
of holders of Senior Debt Securities of such Series or all Senior Debt
Securities, as the case may be, whose names and addresses appear in
the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section 6.02, and as to
the approximate cost of mailing to such holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information the Trustee shall, upon the written request of such
applicants, mail to each holder of such Series or all Senior Debt Securities,
as the case may be, whose name and address appears in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 6.02, a copy of the form of proxy or other communication which
is specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the holders of Senior
Debt Securities of such Series or all Senior Debt Securities, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If said Commission, after opportunity for a
hearing upon the objections specified in the written statements so filed, shall
enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, said Commission
shall find, after notice and opportunity for hearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all holders of Senior Debt Securities of
such Series or all Senior Debt Securities, as the case may be, with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every holder of the Senior Debt Securities, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any paying agent nor any Senior Debt
Security Registrar should be held accountable by reason of the disclosure of
any such information as to the names and addresses of the holders of Senior
Debt Securities in accordance with the provisions of subsection (b) of this
Section 6.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable
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by reason of mailing any material pursuant to a request made under said
subsection (b) or for taking any action in good faith under said subsection
(b).
SECTION 6.03. (a) The Company covenants and agrees to file with
the Trustee, within 15 days after the Company is required to file the same with
the Securities and Exchange 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 said Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with said Commission
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of such sections, then to file with the Trustee and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such supplementary and periodic information, documents
and reports which may be required pursuant to section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in the Indenture as may be
required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail to the
holders of Senior Debt Securities as their names and addresses appear on the
Senior Debt Security Register for each Series of Senior Debt Securities, (1)
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 subsections (a) and (b) of this Section 6.03 as may be required by rules and
regulations prescribed from time to time by the Securities and Exchange
Commission, and (2) within 120 days after the end of each fiscal year of the
Company, copies of audited financial statements, on a consolidated basis if
applicable, including balance sheets, statements of operations, statements of
shareholders' equity and statements of changes in financial position, together
with the respective reports of independent certified public accountants
relating thereto.
SECTION 6.04. (a) Within 60 days after May 15 of each year
commencing with the year 1999, so long as any Senior Debt Securities of a
particular Series are outstanding hereunder, the Trustee shall transmit to the
holders of each such Series as hereinafter in this Section 6.04 provided, a
brief report dated as of such May 15, with respect to any of the following
events which may have occurred within the previous twelve months (but if no
such event has occurred within such period, no report needs to be transmitted):
(1) any change to its eligibility under Section 8.09, and
its qualifications under Section 8.08;
(2) the creation of or any material change to a
relationship specified in paragraphs (1) through (10) of Section
8.08(c);
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(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Senior Debt Securities of
such Series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect)
to report such advances if such advances so remaining unpaid aggregate
not more than one-half of one percent of the principal amount of the
Senior Debt Securities of such Series outstanding on the date of such
report;
(4) the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on
the Senior Debt Securities) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based
upon a creditor relationship arising in any manner described in
paragraphs (2), (3), (4) or (6) of subsection (b) of Section 8.13;
(5) any change to the property and funds, if any,
physically in the possession of the Trustee as such on the date of
such report;
(6) any change to any release, or release and
substitution, of property subject to the lien of this Indenture (and
consideration therefor, if any) not previously reported;
(7) any additional issue of Senior Debt Securities not
previously reported; and
(8) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Senior Debt Securities
except action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section
7.07.
(b) The Trustee shall transmit to the holders of a Series, as
hereinafter provided, a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee as such since the date of
the last report transmitted pursuant to the provisions of subsection (a) of
this Section 6.04 (or if no such report has yet been so transmitted, since the
date of execution of this Indenture), for the reimbursement of which it claims
or may claim a lien or charge prior to that of the Senior Debt Securities of
such Series, on property or funds held or collected by it as Trustee, and which
it has not previously reported pursuant to this subsection (b), except that the
Trustee shall not be required (but may elect) to report such advances if such
advances remaining unpaid at any time aggregate 10 percent or less of the
principal amount of Senior Debt Securities of such Series outstanding at such
time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section 6.04 shall be transmitted by
mail to all holders of Senior Debt Securities of a Series, as the names and
addresses of such holders appear upon the Senior Debt Security Register.
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(d) A copy of each such report shall, at the time of such
transmission to holders, be filed by the Trustee with each stock exchange upon
which the Senior Debt Securities are listed and also with the Securities and
Exchange Commission. The Company agrees to notify the Trustee when and as the
Senior Debt Securities of any Series become listed on any stock exchange.
ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS OF SENIOR
DEBT SECURITIES IN EVENT OF DEFAULT.
SECTION 7.01. In case one or more of the following Events of Default
with respect to the Senior Debt Securities of a Series shall have occurred and
be continuing, that is to say:
(a) default in the payment of any installment of interest upon any
of the Senior Debt Securities of such Series as and when the same shall become
due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any,
on any of the Senior Debt Securities of such Series or of any Sinking Fund
payment as and when the same shall become due and payable either at maturity,
upon redemption, by declaration or otherwise; or
(c) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company in the
Senior Debt Securities or in this Indenture contained for a period of 60 days
after the date on which written notice (such written notice to state it is a
"Notice of Default" hereunder) of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25 per cent in principal
amount of the Senior Debt Securities of such Series at the time outstanding; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part 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 60 consecutive days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall 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, sequestrator (or similar
official) of the Company or for any substantial part of its property, or make
any general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or corporate action shall be taken by the
Company in furtherance of any such action; then, and in each and every such
case, unless the principal of all the Senior Debt Securities of such Series
shall have already become due and payable, either the Trustee or the holders of
not less than 25 per cent in aggregate principal amount of the Senior Debt
Securities of such Series then outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by holders of Senior Debt Securities),
may, and at the request of the holders of not less than 25 per cent in
aggregate principal
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amount of the Senior Debt Securities of such Series then outstanding hereunder,
the Trustee by notice in writing to the Company shall, declare the principal of
all the Senior Debt Securities of such Series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the said Senior
Debt Securities of such Series contained to the contrary notwithstanding. This
provision, however, is subject to the condition that if, at anytime after the
principal of the Senior Debt Securities of such Series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Senior Debt Securities of that
Series and the principal of and premium, if any, on any and all such Senior
Debt Securities which shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and, to the extent that
payment of such interest is enforceable under applicable law, upon overdue
installments of interest, at the rate borne by the Senior Debt Securities of
that Series to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith, and any
and all defaults under the Indenture, other than the nonpayment of the
principal of Senior Debt Securities of that Series which shall have become due
by acceleration, shall have been remedied -- then, and in every such case, the
holders of a majority in aggregate principal amount of the Senior Debt
Securities of such Series then outstanding, by written notice to the Company
and to the Trustee, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
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, the Trustee and the holders of the Senior Debt Securities of such
Series shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
and the holders of the Senior Debt Securities of such Series shall continue as
though no such proceedings had been taken.
The Trustee shall not be charged with notice of any default or Event
of Default under subsections (c), (d) or (e) of this Section 7.01 unless the
Trustee shall have actually received (at its corporate trust office) written
notice thereof from the Company or any holder of Senior Debt Securities
describing said default or Event of Default.
SECTION 7.02. The Company covenants that (1) in case default shall be
made in the payment of any installment of interest on any of the Senior Debt
Securities of a Series, as and when the same shall become due and payable, and
such default, shall have continued for a period of 60 days, or (2) in case
default shall be made in the payment of the principal of or premium, if any, on
any of the Senior Debt Securities of a Series or of any Sinking Fund payment
when the same shall have become
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payable, whether upon maturity of the Senior Debt Securities of such Series or
upon redemption or upon declaration or otherwise then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Senior Debt Securities of such Series, the whole amount that then shall
have become due and payable on all such Senior Debt Securities of such Series
for principal and premium, if any, or interest, or both, as the case may be,
with interest upon the overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under applicable law) upon
overdue installments of interest at the rate borne by the Senior Debt
Securities of such Series; and, in addition thereto, such further amount as
shall be sufficient to cover reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
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 any other obligor upon the
Senior Debt Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon the Senior Debt Securities
wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Senior Debt
Securities under the Federal bankruptcy laws, as now or hereafter constituted,
or any other Federal or State bankruptcy, insolvency or similar laws relative
to the Company or to such other obligor, its creditors or its property, or in
case a receiver or trustee shall have been appointed for its property, or in
case of any other judicial proceedings relative to the Company or other obligor
upon the Senior Debt Securities, its creditors or its property, the Trustee
irrespective of whether the principal of any Senior Debt 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 7.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or
claims for the whole amount of principal and premium, if any, and interest
owing and unpaid in respect of the Senior Debt Securities, and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the holders of Senior Debt Securities allowed in any judicial
proceedings relative to the Company or other obligor upon the Senior Debt
Securities, its creditors or its property, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of the holders of
Senior Debt Securities and of the Trustee on their behalf; and any receiver,
assignee, liquidator, sequestrator or trustee in bankruptcy or reorganization
is hereby authorized by each of the holders of Senior Debt Securities to make
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of payments directly to the holders of Senior Debt Securities, to
pay to the Trustee such amount as shall be sufficient to cover reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 8.06.
All rights of action and of asserting claims under this Indenture, or
under any of the Senior Debt Securities, may be enforced by the Trustee without
the possession of any of the Senior Debt
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Securities, or the production thereof in any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name and as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
Senior Debt Securities.
In case of a default of which the Trustee has or is deemed to have
notice hereunder occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specified enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 7.03. Any moneys collected by the Trustee pursuant to Section
7.02 shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or premium, if any, or interest, upon presentation of the several Senior Debt
Securities, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
and reasonable compensation, expenses, disbursements and advances of
the Trustee, it agents and counsel, and any other amounts due to the
Trustee under this Indenture, including without limitation amounts due
under Section 8.06;
SECOND: In case the principal of the Senior Debt Securities
of a Series shall not have become due, to the payment of interest on
the Senior Debt Securities, 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) upon the overdue
installments of interest at the rate borne by the Senior Debt
Securities of such Series, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Senior Debt Securities of
a Series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon the Senior Debt
Securities of such Series for principal, and premium, if any, and
interest, with interest on the overdue principal, and premium, if any,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate borne by
the Senior Debt Securities of such Series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and
unpaid on the Senior Debt Securities of such Series, then to the
payment of such principal, and premium, if any, and interest, without
preference or priority of principal, and premium, if any, over
interest, or of interest over principal, and premium, if any, or of
any installment of interest over any other installment of interest, or
of any Senior Debt Security of such Series over any other Senior Debt
Security of such Series, ratably to the aggregate of such principal,
and premium, if any, and accrued and unpaid interest.
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SECTION 7.04. No holder of any Senior Debt Security of a Series shall
have any right by virtue or by availing of any provision of this Indenture to
institute any action or proceedings 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 receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of
default in respect of such Series and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than 25 percent
in aggregate principal amount of the Senior Debt Securities of such Series then
outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as Trustee hereunder and shall have
furnished to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and furnishing
of indemnity, shall have failed to institute any such action or proceedings and
no direction inconsistent with such written request shall have been given to
the Trustee pursuant to Section 7.06; it being understood and intended, and
being expressly covenanted by the taker and holder of every Senior Debt
Security of such Series with every other such taker and holder and the Trustee,
that no one or more holders of Senior Debt Securities of a Series 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 the holders of any
other of such Senior Debt Securities of such Series, or to obtain or seek to
obtain priority over or preference to any other such 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 Senior Debt Securities of
such Series. For the protection and enforcement of the provisions of this
Section 7.04, each and every holder of such Series and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Senior Debt Security to receive payment of the
principal of, and premium, if any, and interest on, such Senior Debt Security,
on or after the respective due dates expressed in such Senior Debt Security, or
to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
holder.
SECTION 7.05. All powers and remedies given by this Article Seven to
the Trustee or to the holders of Senior Debt Securities shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or such holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any holder of any of the Senior Debt Securities
to exercise any right or power accruing upon any default occurring and
continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy given by this
Article Seven or by law to the Trustee or to the holders of Senior Debt
Securities may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by such holders.
SECTION 7.06. The holders of a majority in aggregate principal amount
of the Senior Debt Securities of a Series at the time outstanding shall have
the right to direct the time, method, and place of conducting any proceeding of
any remedy available to the Trustee with respect to the Senior Debt
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Securities of such Series, or exercising any trust or power conferred on the
Trustee with respect to such Series; provided, however, that the Trustee shall
be entitled to receive indemnity or security reasonably satisfactory to it
prior to following such direction or taking such action, and providing further
that subject to the provisions of Section 8.01 the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if
the Trustee in good faith shall, by a responsible officer or officers,
determine that the action so directed would be unduly prejudicial to the
holders of the Senior Debt Securities of such Series not taking part in such
direction or would involve the Trustee in personal liability. Prior to the
declaration of the maturity of the Senior Debt Securities of any Series as
provided in Section 7.01, the holders of a majority in aggregate principal
amount of the Senior Debt Securities of a Series at the time outstanding may on
behalf of the holders of all of the Senior Debt Securities of such Series waive
any past default hereunder and its consequences, except a default in the
payment of the principal of, or premium, if any, or interest on, any of the
Senior Debt Securities of such Series or in respect of a covenant or provision
hereof which under Section 11.02 cannot be modified or amended without the
consent of the holder of each Senior Debt Security so affected. In the case of
any such waiver, the Company, the Trustee and the holders of the Senior Debt
Securities of such Series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 7.07. The Trustee shall, within 90 days after the occurrence
of a default with respect to a Series of which the Trustee has or is deemed to
have knowledge hereunder, give to the holders of such Series, in the manner and
to the extent provided in subsection (c) of Section 6.04, notice of all such
defaults, unless such default shall have been cured before the giving of such
notice (the term "default" or "defaults" for the purposes of this Section 7.07
being hereby defined to be any event or events, as the case may be, specified
in clause (a), (b), (c), (d) and (e) of Section 7.01, not including periods of
grace, if any, provided for therein and irrespective of the giving of the
written notice specified in clause (c) of Section 7.01); provided, however,
that, except in the case of default in the payment of the principal of, or
premium, if any, or interest on, any of the Senior Debt Securities, or in the
payment of any Sinking Fund installment, 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 and/or responsible officers, of
the Trustee in good faith determines that the withholding of such notice is in
the interests of the holders of such Series.
SECTION 7.08. All parties to this Indenture agree, and each holder of
any Senior Debt Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 7.08 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any holder of Senior
Debt Securities, or group of holders of Senior Debt Securities, holding in the
aggregate more than 10 percent in aggregate principal amount of the Senior Debt
Securities of a Series then outstanding, or to any suit instituted by any
holder of Senior Debt
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Securities for the enforcement of the payment of the principal of, or premium,
if any, or interest on, any Senior Debt Security, on or after the due date
expressed in such Senior Debt Security.
ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. The Trustee, prior to the occurrence of an Event of
Default with respect to the Senior Debt Securities of a particular Series and
after the curing or waiver of all Events of Default with respect to the Senior
Debt Securities of a particular Series which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Senior Debt
Securities of any Series has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
the Senior Debt Securities of a particular Series and after the curing of all
Events of Default with respect to the Senior Debt Securities of any Series
which may have occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any 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) 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; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in aggregate principal
amount of the Senior Debt Securities of a Series at the time outstanding
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee,
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or exercising any trust or power conferred upon the Trustee, under this
Indenture relating to such Series.
None of the provisions contained in 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 there is reasonable ground for believing
that the repayment of such funds is not reasonably assured to it or at the
option of the Trustee indemnity reasonably satisfactory to the Trustee against
such risk or liability has not been provided.
Whether or not herein 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
8.01.
SECTION 8.02. Except as otherwise provided in Section 8.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, direction, approval, order, bond,
debenture, or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an instrument signed in the
name of the Company by the Chairman of the Board, President or any Vice
President and the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors of the
Company may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(d) 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 of Senior Debt Securities, pursuant to the
provisions of this Indenture, unless such holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, discretion,
approval, bond, debenture or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see
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fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney (other than an employee of the
Trustee) appointed by it with due care hereunder.
SECTION 8.03. The recitals contained herein and in the Senior Debt
Securities (except in the Trustee's certificate of authentication) shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Senior Debt Securities. The Trustee shall not be accountable for the use or
application by the Company of any of the Senior Debt Securities or of the
proceeds thereof.
SECTION 8.04. The Trustee or any paying agent or Senior Debt Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Senior Debt Securities with the same rights it would have if it were
not Trustee, paying agent or Senior Debt Security Registrar.
SECTION 8.05. Subject to the provisions of Section 13.04, all moneys
received by the Trustee shall, until used or applied as herein provided, be
held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. Neither the
Trustee nor any paying agent shall be under any liability for interest on any
moneys received by it hereunder except such as it may agree in writing with the
Company to pay thereon. So long as no Event of Default with respect to the
Senior Debt Securities of any Series shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by its President or any Vice President or
its Treasurer or an Assistant Treasurer.
SECTION 8.06. The Company covenants and agrees 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), and, except as otherwise expressly provided, the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith.
If any property other than cash shall at any time be subject to a lien
in favor of the holders of Senior Debt Securities, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property to such
lien, shall be entitled to make advances for the purpose of preserving such
property or of discharging tax liens or other prior liens or encumbrances
thereon, provided that the Trustee shall be under no
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affirmative duty to make such advances. The Company also covenants to
indemnify the Trustee, its directors, officers, employees or agents for, and to
hold each of them harmless against, any loss, liability or expense incurred
without negligence, intentional wrongdoing or bad faith on the part of the
Trustee, its directors, officers, employees or agents, arising out of or in
connection with the acceptance or administration of this trust, the offering,
issuance or sale of the Senior Debt Securities or any or all other transactions
contemplated hereunder, including the reasonable cost and expenses of defending
against any claim of liability in the premises. The obligations of the Company
under this Section 8.06 to compensate the Trustee, its directors, officers,
employees or agents and to pay or reimburse the Trustee, its directors,
officers, employees or agents for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. The Trustee shall give the
Company prompt notice of any action commenced against it in respect of which
indemnity may be sought hereunder. The Trustee's willful failure to so notify
the Company, after the receipt by the Trustee at its Corporate Trust Office of
written notification of such action, shall relieve the Company from any
liability under this Indenture with respect to such action. In any such action
the Company, by written notice to the Trustee, may assume the defense thereof
with counsel of the Trustee's choosing, who shall be subject to the approval of
the Company; and such approval shall not be unreasonably withheld by the
Company. In no event shall the Company be required to indemnify or reimburse
the Trustee hereunder in respect of any claim settled or compromised without
its consent. In no event shall the Company be liable for the fees and
expenses, which in all cases must be reasonable under the circumstances, of
more than one counsel in connection with any one action. Such additional
indebtedness shall be secured by a lien prior to that of the Senior Debt
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
Senior Debt Securities of any Series.
SECTION 8.07. Except as otherwise provided in Section 8.01, whenever
in the administration of the provisions of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to
the Trustee and such Officers' Certificate, in the absence of negligence or bad
faith on the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof.
SECTION 8.08. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section 8.08, it shall, within 90 days
after ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect specified in
Section 8.10, such resignation to become effective upon the appointment of a
successor trustee and such successor's acceptance of such appointment, and the
Company shall take prompt steps to have a successor appointed in the manner
provided in Section 8.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section 8.08, the Trustee shall, within 10
days after the expiration of such 90 day period, transmit notice of such
failure to the holders of Senior Debt Securities in the manner and to the
extent provided in subsection (c) of Section 6.04.
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(c) For the purposes of this Section 8.08 the Trustee shall be
deemed to have a conflicting interest if a default or an Event of Default
exists with respect to the Senior Debt Securities of any Series and if:
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company are outstanding
or is trustee for more than one outstanding "series of securities" (as
hereafter defined) issued under a single indenture (including, without
limitation, this Indenture) of the Company unless such other indenture
is a collateral trust indenture under which the only collateral
consists of Senior Debt Securities issued under this Indenture,
provided that there shall be excluded from the operation of this
paragraph any other Series of Senior Debt Securities issued under this
Indenture, and any other indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding if (i) this Indenture and
such other indenture or indentures (and all series of securities
issuable thereunder) are wholly unsecured and rank equally, and such
other indenture or indentures (and such series) are specifically
described in this Indenture or are hereafter qualified under the Trust
Indenture Act of 1939, unless the Securities and Exchange Commission
shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture
Act of 1939 that differences exist between the provisions of this
Indenture (or such series) and the provisions of such other indenture
or indentures (or such series) which are so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture or such other indenture or
indentures, or (ii) the Company shall have sustained the burden of
proving, on application to the Securities and Exchange Commission and
after opportunity for hearing thereon, that the trusteeship under this
Indenture and such other indenture, or under more than one outstanding
series under a single indenture, is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under one of such indentures or with respect to
such series;
(2) the Trustee or any of its directors or executive
officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee, or
representative of the Company, or of an underwriter (other than the
Trustee itself) for the Company who is currently engaged in the
business of underwriting, except that (A) one individual may be a
director and/or an executive officer of the Trustee and a director
and/or an executive officer of the Company, but may not be at the same
time an executive officer of both the Trustee and the Company; (B) if
and so long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director and/or an
executive officer of the Trustee and a director of the
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Company; and (C) the Trustee may be designated by the Company, or by
any underwriter for the Company, to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow agent,
or depositary, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (c), to act as trustee
whether under an indenture or otherwise;
(5) 10 percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any
director, partner, or executive officer thereof, or 20 percent or more
of such voting securities is beneficially owned, collectively, by any
two or more of such persons; or 10 percent or more of the voting
securities of the Trustee is beneficially owned either by an
underwriter for the Company or by any director, partner, or executive
officer thereof, or is beneficially owned, collectively, by any two or
more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), (A) 5 percent or more of
the voting securities, or 10 per cent or more of any other class of
security, of the Company, not including the Senior Debt Securities
issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) 10 percent
or more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 5 per cent or more of the
voting securities of any person who, to the knowledge of the Trustee,
owns 10 percent or more of the voting securities of, or controls
directly or indirectly, or is under direct or indirect common control
with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default (as
hereinafter in this subsection (c) defined), 10 per cent or more of
any class of security of any person who, to the knowledge of the
Trustee, owns 50 per cent or more of the voting securities of the
Company; or
(9) the Trustee owns on the date of default upon the
Senior Debt Securities of any Series or any anniversary of such
default while such default upon the Senior Debt Securities of such
Series remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an
aggregate of 25 per cent or more of the voting securities, or of any
class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting
interest under paragraph (6), (7) or (8) of this subsection (c). As
to any such securities of which the Trustee acquired ownership through
becoming executor, administrator, or testamentary trustee of an estate
which included them, the provisions of the preceding sentence shall
not apply, for a period of two years from the date of such
acquisition, to the extent that such securities do not exceed 25
percent of such voting securities or 25 per cent of any such class of
security. Promptly after the dates of any such default upon the
Senior Debt Securities of any Series and annually in each succeeding
year
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that the Senior Debt Securities of such Series remain in default, the
Trustee shall make a check of its holdings of such securities in any
of the above-mentioned capacities as of such dates. If the Company
fails to make payment in full of principal of or interest on any of
the Senior Debt Securities when and as the same become due and
payable, and such failure continues for 30 days thereafter, the
Trustee shall make a prompt check of its holdings of such securities
in any of the above-mentioned capacities as of the date of the
expiration of such 30 day period, and after such date, notwithstanding
the foregoing provisions of this paragraph (9), all such securities so
held by the Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall continue,
be considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection (c).
(10) Except under the circumstances described in
paragraphs (1), (3), (4), (5) or (6) of Section 8.13(b), the Trustee
shall be or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection (c) and Section 7.06,
the term "series of securities" or "series" means a series, class or group of
securities issuable under an indenture pursuant to whose terms holders of one
such series may vote to direct the trustee, or otherwise take action pursuant
to a vote of such holders, separately from holders of another series; provided,
that "series of securities" or "series" shall not include any series of
securities issuable under an indenture if all such series rank equally and are
wholly unsecured.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (c) shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (C) the Trustee shall not be
deemed to be the owner or holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default
hereunder, or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar representative
capacity.
Except as above provided, the word "security" or "securities" as used
in this Indenture shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, pre-organization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, or, in
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general, any interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of or warrant or right to subscribe to or purchase,
any of the foregoing.
(d) For the purposes of this Section 8.08:
(1) The term "underwriter" when used with reference to
the Company shall mean every person who, within one year prior to the
time as of which the determination is made, has purchased from the
Company with a view to, or has offered for sale or has sold for the
Company in connection with, the distribution of any security of the
Company outstanding at such time, or has participated or has had a
direct or indirect participation in any such undertaking, or has
participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include
a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with
respect to any organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a
trust, an unincorporated organization, or a government or political
subdivision thereof. As used in this paragraph, the term "trust"
shall include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement
whereby a trustee or trustees or agent or agents for the owner or
holder of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" shall mean any obligor upon the
Senior Debt Securities.
(6) The term "executive officer" shall mean the
president, every vice president, every trust officer, the cashier, the
secretary and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any
organization whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(e) The percentage of voting securities and other securities
specified in this Section 8.08 shall be calculated in accordance with the
following provisions:
(A) A specified percentage of the voting securities of
the Trustee, the Company or any other person referred to in this
Section 8.08 (each of whom is referred to as a "person" in this
paragraph) means such amount of the outstanding voting securities of
such person as
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entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities shall not
be deemed outstanding within the meaning of this definition:
(i) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer of
the same class.
(ii) Securities of an issuer held in a sinking
fund relating to another class of securities of the issuer, if
the obligation evidenced by such other class of securities is
not in default as to principal or interest or otherwise.
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise.
(iv) Securities held in escrow if placed in escrow
by the issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes; and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 8.09. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States or
of any State or of the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $10,000,000, subject to supervision or examination by Federal, State or
District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the
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purposes of this Section 8.09, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Neither the Company nor
any person directly or indirectly controlling, controlled by or under common
control with the Company shall serve as Trustee under this Indenture or any
Series Supplement. In case at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section 8.09, the Trustee shall
resign immediately in the manner and with the effect specified in Section 8.10.
SECTION 8.10. (a) The Trustee may at any time resign with
respect to one or more or all Series of Senior Debt Securities by giving
written notice by first-class mail of such resignation to the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument in duplicate executed by order of the
Board of Directors of the Company, 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 and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee, or any holder who has been a bona fide holder of a Senior
Debt Security or Senior Debt Securities of the applicable Series for at least
six months may, subject to the provisions of Section 8.08, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee. Any
resignation of the Trustee shall be subject to the provisions of subparagraph
(d) hereof.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions
of subsection (a) of Section 8.08 with respect to any Series of Senior
Debt Securities after written request therefor by the Company or by
any holder who has been a bona fide holder of a Senior Debt Security
or Senior Debt Securities for at least six months, or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.09 and shall fail to resign after
written request therefor by the Company or by any such holder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the
Trustee and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors of the Company,
one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.08, any holder who has been a bona fide holder
of a Senior Debt Security or Senior Debt Securities of such Series for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to the applicable Series and the
appointment of a
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successor trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee with
respect to the applicable Series and appoint a successor trustee.
(c) The Company may also remove the Trustee, pursuant to the
procedures set forth in Section 8.10(b) hereof, if the Company has given 60
days written notice to the Trustee and the holders of the applicable Series of
Senior Debt Securities and has delivered to the Trustee and such holders of
Senior Debt Securities an Officers' Certificate stating:
(1) the reasons for such removal;
(2) that such removal will in no way be detrimental to
the interests of such holders of Senior Debt Securities; and
(3) the identity of the successor trustee to be
appointed;
provided that (i) such successor trustee shall have a combined capital and
surplus of at least $20,000,000, (ii) the rating assigned to the debt
obligations of such successor trustee by the rating agency or agencies rating
any such debt obligations shall be no lower than the rating assigned, at the
time of appointment of the Trustee being replaced, to the debt obligations of
the Trustee being replaced, and (iii) such successor trustee shall be
independent and shall be eligible to act as Trustee pursuant to Sections 8.08
and 8.09 hereof; and, provided further that if after receiving such notice, the
holders of a majority in principal amount of the outstanding Senior Debt
Securities of the applicable Series shall notify the Trustee that they are
opposed to such removal, the Company shall not be entitled to remove the
Trustee pursuant to this Section 8.10(c) and the Company shall not be entitled
to exercise its rights pursuant to this Section 8.10(c) for six months after
such notice by the holders of Senior Debt Securities.
(d) The holders of a majority in aggregate principal amount of the
Senior Debt Securities of any Series at the time outstanding may at any time
remove the Trustee with respect to the Senior Debt Securities of such Series
and appoint a successor trustee of the applicable Series of Senior Debt
Securities by delivery to the Trustee so removed, to the successor trustee so
appointed and to the Company, the evidence provided for in Section 9.01 of the
action taken by the holders of the Senior Debt Securities.
(e) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section 8.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 8.11.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
holders of the applicable Series of Senior Debt Securities as their names and
addresses appear in the Senior Debt Security Register. Each notice shall
include the name of the successor trustee and the address of its principal
corporate trust office. If the Company fails to
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mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Company.
SECTION 8.11. Any successor trustee appointed as provided in Section
8.10 shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment, 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 of its predecessor, with like effect as if
originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the Trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such successor trustee
all the right and powers of the Trustee so ceasing to act. 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 8.06.
If a successor trustee is appointed with respect to the Senior Debt
Securities of one or more (but not all) Series, the Company, the predecessor
trustee and each successor trustee with respect to the Senior Debt Securities
of any applicable Series shall execute and deliver an agreement 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 Senior Debt 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 agreement shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be a trustee of a trust or trusts under separate Indentures.
No successor trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
SECTION 8.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger or conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 8.08 and eligible under the provisions of Section 8.09, 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 Senior Debt Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and
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deliver such Senior Debt Securities so authenticated; and in case at that time
any of the Senior Debt Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Senior Debt Securities either in
the name of any predecessor hereunder or in the name of the successor trustee;
and in all such cases such certificate shall have the full force which it is
anywhere in the Senior Debt Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Senior Debt Securities in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 8.13. (a) Subject to the provisions of subsection (b)
of this Section 8.13, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company on the Senior Debt
Securities within three months prior to a default, as defined in subsection (c)
of this Section 8.13, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the holders of the Senior
Debt Securities and the holders of other indenture securities (as defined in
subsection (c) of this Section 8.13):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the Company) who
is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other Federal or State bankruptcy,
insolvency or similar law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property was so
held prior to the beginning of such three months' period;
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(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by
it as security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
8.13 would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property held as
security for such claim as provided in such paragraph (B) or (C), as
the case may be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the holders of Senior Debt Securities and the holders of
other indenture securities in such manner that the Trustee, the holders of
Senior Debt Securities and the holders of other indenture securities realize,
as a result of payments from such special account and payments of dividends on
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal bankruptcy laws, as now
or hereafter constituted, or any other Federal or State bankruptcy, insolvency
or similar law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt by it
from the Company of the funds and property in such special account and before
crediting to the respective claims of the Trustee, the holders of Senior Debt
Securities and the holders of other indenture securities dividends on claims
filed against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or hereafter
constituted, or any other Federal or State bankruptcy, insolvency or similar
law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such
dividends and from the funds and property so held in such special account. As
used in this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other Federal or State
bankruptcy, insolvency or similar law, whether such distribution is made in
cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which said bankruptcy, receivership, or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustee, the
holders of Senior Debt Securities and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and the proceeds thereof, or (ii) in lieu
of such apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of
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the distributions to be made to the Trustee, the holders of Senior Debt
Securities and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which
would have given rise to the obligation to account, if such Trustee
had continued as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section 8.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereof, if notice of such advance and of the
circumstances surrounding the making thereof is given to the holders
of Senior Debt Securities at the time and in the manner provided in
this Indenture;
(3) disbursements made in the ordinary course of business
in the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary, or
other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
subsection (c) of this Section 8.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
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(6) the acquisition, ownership, acceptance or negotiation
of any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self-liquidating paper as defined in
subsection (c) of this Section 8.13.
(c) As used in this Section 8.13:
(1) The term "default" shall mean any failure to make
payment in full of the principal of or interest on any of the Senior
Debt Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the
Trust Indenture Act of 1939) outstanding under anyother indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 8.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) The term "cash transaction" shall mean any
transaction in which full payment for goods or securities sold is made
within seven days after delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or bankers and
payable upon demand.
(4) The term "self-liquidating paper" shall mean any
draft, xxxx of exchange, acceptance or obligation which is made,
drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of
the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising
form the making, drawing, negotiating or incurring of the draft, xxxx
of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the
Senior Debt Securities.
ARTICLE NINE.
CONCERNING THE HOLDERS OF SENIOR DEBT SECURITIES.
SECTION 9.01. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Senior
Debt Securities of a 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 (a)
by any instrument or any number of instruments of similar tenor executed by
holders in person or by agent or proxy appointed in writing, or (b) by the
record of the holders of the Senior Debt Securities of such Series voting in
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favor thereof at any meeting of holders duly called and held in accordance with
the provisions of Article Ten, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of holders.
SECTION 9.02. Subject to the provisions of Section 9.01 and Section
9.05, proof of the execution of any instrument by a holder or his agent or
proxy and proof of the holding by any person of any of the Senior Debt
Securities of a Series shall be sufficient if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction within the United States of America authorized to
take acknowledgments of deeds to be recorded in such jurisdiction, that the
person executing such instrument acknowledged to him the execution thereof, by
an affidavit of a witness to such execution sworn to before any such notary or
other such officer or by any other method or in any other manner as shall be
acceptable to the Trustee. If such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such corporation,
association or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority.
The ownership of Senior Debt Securities of a Series shall be proved by
the Senior Debt Security Register or by a certificate of the Senior Debt
Security Registrar thereof.
The Trustee shall not be bound to recognize any person as a holder
unless and until his title to the Senior Debt Securities held by him is proved
in the manner in this Article Nine provided.
The Trustee may require such additional proof of any matter referred
to in this Section 9.02 as it shall deem necessary.
The record of any holders' meeting shall be proved in the manner
provided in Section 10.06.
SECTION 9.03. The Company, the Trustee, any paying agent and any
Senior Debt Security Registrar may deem and treat the person in whose name any
Senior Debt Security shall be registered in the Senior Debt Security Register
as the absolute owner of such Senior Debt Security (whether or not such Senior
Debt Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon made by anyone other than the Company or any Senior Debt
Security Registrar) for the purpose of receiving payment thereof or on account
thereof and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Senior Debt Security Registrar shall be affected by
any notice to the contrary. All such payments so made to any such registered
holder for the time being, 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 monies payable upon any such Senior Debt Security.
SECTION 9.04. In determining whether the holders of the requisite
aggregate principal amount of Senior Debt Securities of a Series have concurred
in any direction, consent or waiver under this Indenture, Senior Debt
Securities of such Series which are owned by the Company, or any other obligor
on the Senior Debt Securities of such Series or by any person directly or
indirectly
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controlling or controlled by or under direct or indirect common control with
the Company, or any other obligor on the Senior Debt Securities of such Series
shall be disregarded and deemed not to be outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Senior Debt Securities of such Series which the Trustee knows are so owned
shall be so disregarded. Senior Debt Securities of such Series so owned which
have been pledged in good faith may be regarded as outstanding for the purposes
of this Section 9.04, if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to vote such Senior Debt Securities and that the
pledgee is not a person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, or any such other
obligor. Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Senior Debt
Securities of such Series, if any, known by the Company to be owned or held by
or for the account of any of the above described persons; and, subject to the
provisions of Section 8.01, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Senior Debt Securities of such Series not listed therein
are outstanding for the purposes of any such determination.
SECTION 9.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 9.01, of the taking of any action by the
holders of the percentage in aggregate principal amount of the Senior Debt
Securities of a Series specified in this Indenture in connection with such
action, any holder of a Senior Debt Security of such Series the serial number
of which is shown by the evidence to be included in the Senior Debt Securities
of such Series the holders of which have consented to such action may, by
filing written notice with the Trustee at its office and upon proof of holding
as provided in Section 9.02, revoke such action so far as concerns such Senior
Debt Security. Except as aforesaid, any such action taken by the holder of any
Senior Debt Security shall be conclusive and binding upon such holder and upon
all future holders and owners of such Senior Debt Security, and of any Senior
Debt Security issued in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon such Senior Debt
Security. Any action taken by the holders of the percentage in aggregate
principal amount of the Senior Debt Securities of a Series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Senior Debt Securities of such
Series.
ARTICLE TEN.
MEETINGS OF HOLDERS OF SENIOR DEBT SECURITIES.
SECTION 10.01. A meeting of holders of Senior Debt Securities of any
or all Series may be called at any time and from time to time pursuant to the
provisions of this Article Ten for any of the following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other
action authorized to be taken by holders pursuant to any of the
provisions of Article Seven;
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(2) to remove the Trustee with respect to one or more or
all Series and appoint a successor trustee pursuant to the provisions
of Article Eight;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
11.02; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount
of the Senior Debt Securities of any or all Series under any other
provision of this Indenture or under applicable law.
SECTION 10.02. The Trustee may at any time call a meeting of holders
of Senior Debt Securities to take any action specified in Section 10.01, to be
held at such time and at such place as the Trustee shall determine. Notice of
every meeting of the holders of any or all Series, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be mailed to such holders of Senior Debt Securities at
their addresses as shown by the Senior Debt Security Register not less than 20
nor more than 60 days prior to the date fixed for the meeting.
SECTION 10.03. In case at any time the Company, pursuant to a
resolution of its Board of Directors, shall have requested the Trustee to call
a meeting of holders of any or all Series, or the holders of at least 10 per
cent in aggregate principal amount of the Senior Debt Securities of the Series
then outstanding with respect to which a meeting is proposed to be called shall
have requested the Trustee to call a meeting of the holders of the applicable
Series, to take any action authorized in Section 10.01 by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or the holders
of Senior Debt Securities of the applicable Series in the amount above
specified may determine the time and the place for such meeting and may call
such meeting by mailing notice thereof as provided in Section 10.02.
SECTION 10.04. To be entitled to vote at any meeting of holders of
Senior Debt Securities of any or all Series a person shall (a) be a holder of
one or more Senior Debt Securities with respect to which such meeting was
called, or (b) be a person appointed by an instrument in writing as proxy by a
holder of one or more Senior Debt Securities with respect to which such meeting
was called. The only persons who shall be entitled to be present or to speak
at any meeting of holders of Senior Debt Securities of any or all Series shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.05. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of holders of Senior Debt Securities, in regard to
proof of the holding of Senior Debt Securities and of the appointment of
proxies, and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting
as it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Senior Debt Securities shall be proved in the
manner specified in Section 9.02 and the appointment of any proxy shall be
proved in the
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manner specified in said Section 9.02 or by having the signature of the person
executing the proxy witnessed or guaranteed by any bank, banker or trust
company.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by holders as provided in Section 10.03, in which case the Company
or the holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the holders of a majority in
aggregate principal amount of the Senior Debt Securities represented at the
meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each holder
or proxy shall be entitled to one vote for each $1,000 (unless otherwise
provided in the related Series Supplement) principal amount of Senior Debt
Securities of the Series entitled to vote held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Senior Debt Security challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Senior Debt Securities of the Series
entitled to vote held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other holders. Any meeting
of holders duly called pursuant to the provisions of Section 10.02 or 10.03 may
be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
At any meeting of holders of Senior Debt Securities of any or all
Series, the presence of persons holding or representing Senior Debt Securities
of the applicable Series in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the persons holding or representing a majority of the Senior Debt
Securities of the applicable Series represented at the meeting may adjourn such
meeting with the same effect as though a quorum had been present.
SECTION 10.06. The vote upon any resolution submitted to any meeting
of holders shall be by written ballots on which shall be subscribed the
signatures of the holders or proxies and the serial number or numbers of the
Senior Debt Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes
cast at the meeting for or against any resolution and who shall make and file
with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of holders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in Section 10.02.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01. The Company, when authorized by resolutions of its
Board of Directors, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Twelve;
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the
Trustee shall consider to be for the protection of the holders of any Series of
Senior Debt Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions,
conditions or provisions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect of any such additional
covenant, restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the right of
the holders of a majority in aggregate principal amount of the Senior Debt
Securities of a Series to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or to make such other provisions in regard to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided that such action
shall not adversely affect the interests of the holders of the Senior Debt
Securities; and
(d) to set forth the terms of any Series that has not theretofore
been authorized by a Series Supplement.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this
Section 11.01 may be executed by the Company and the Trustee without the
consent of the holders of any of the Senior Debt Securities at the time
outstanding, notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. With the consent (evidenced as provided in Section
9.01) of the holders of not less than a majority in aggregate principal amount
of the Senior Debt Securities of each Series to be affected at the time
outstanding, the Company, when authorized by resolutions of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Senior Debt Securities of such Series; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Senior Debt
Securities, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium payable
upon the redemption thereof, without the consent of the holder of each Senior
Debt Security so affected, (ii) reduce the aforesaid percentage of Senior Debt
Securities of any Series, the consent of the holders of which is required for
any such supplemental indenture, without the consent of the holders of all
Senior Debt Securities of such Series then outstanding, or (iii) modify any of
the provisions of this Section or Section 7.06, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the holder of each Senior Debt
Security affected thereby.
Upon the request of the Company, accompanied by a copy of resolutions
of its Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of the holders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the holders under this
Section 11.02 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 11.02, the
Company shall mail to the holders to which such supplemental indenture relates
a notice, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 11.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Eleven, this Indenture shall be and
be deemed to be modified and amended in accordance therewith with respect to
each Series of Senior Debt Securities affected thereby or all Senior Debt
Securities, as the case may be, and the respective rights, limitations of
rights,
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obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Senior Debt Securities of each Series affected
thereby shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Section 8.01, may receive an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
complies with the provisions of this Article Eleven and that all conditions
precedent thereto have been met.
SECTION 11.04. Senior Debt Securities authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article Eleven or after any action taken at a meeting of holders of Senior
Debt Securities pursuant to Article Ten, may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture or as to any such action. New
Senior Debt Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture or reflecting such
action may be prepared by the Company, and such Senior Debt Securities may be
authenticated by the Trustee and delivered in exchange for the Senior Debt
Securities then outstanding.
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 12.01. (a) Nothing contained in this Indenture or in any
of the Senior Debt Securities shall prevent any consolidation or merger of the
Company with or into any other corporation or corporations or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of the
property of the Company as an entirety or substantially as an entirety to any
other corporation authorized to acquire and operate the same; provided,
however, and the Company hereby covenants and agrees, that any such
consolidation, merger, sale or conveyance shall be upon the condition that (a)
immediately after such consolidation, merger, sale or conveyance, the
corporation (whether the Company or such other corporation) formed by or
surviving any such consolidation or merger, or to which such sale or conveyance
shall have been made, shall not be in default in the performance or observance
of any of the terms, covenants and conditions of this Indenture to be kept or
performed by the Company; (b) the corporation (if other than the Company)
formed by or surviving any such consolidation or merger, or to which such sale
or conveyance shall have been made, shall be a corporation organized under the
laws of the United States of America or any state thereof; and (c) the due and
punctual payment of the principal of (and premium, if any) and interest on all
of the Senior Debt Securities, according to their tenor, and the due and
punctual performance and observance of all the covenants and conditions of this
Indenture to be performed, or observed by the Company, shall be expressly
assumed by the corporation formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
such property, by supplemental indenture, satisfactory in form to the Trustee,
executed and delivered to
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the Trustee by the corporation formed by such consolidation, or into which the
Company shall have been merged, or by the corporation which shall have acquired
such property.
SECTION 12.02. In case of any such consolidation, merger, sale or
conveyance in accordance with Section 12.01, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it had
been named herein as a party, and the Company (including any intervening
successor to either hereunder) shall be relieved of any further obligation
under this Indenture and the Senior Debt Securities; provided, however, that in
the case of a sale or conveyance of the property of the Company (including any
such intervening successor), in connection with which there is no plan
providing for the complete liquidation of the Company (including any such
intervening successor), the Company (including any such intervening successor)
shall continue to be liable on its obligations under this Indenture and the
Senior Debt Securities to the extent, but only to the extent, of liability to
pay the principal of and premium, if any, and interest on the Senior Debt
Securities at the time, places and rate, and in the coin or currency,
prescribed in this Indenture and the Senior Debt Securities. Any such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company any or all of the Senior Debt
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of any such
successor corporation, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Senior Debt Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Senior Debt Securities which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Senior Debt Securities so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Senior Debt Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Senior Debt Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Senior Debt Securities thereafter to be issued as may be appropriate.
SECTION 12.03. The Trustee, subject to the provisions of Sections
8.01 and 8.02, may receive an Officer's Certificate and an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale or conveyance
complies with the provisions of this Article Twelve and that all conditions
precedent herein provided relating to such transaction have been complied with.
ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 13.01. The Company may terminate its obligation under the
Senior Debt Securities of a Series and this Indenture with respect to such
Senior Debt Securities, except those obligations referred to in the immediately
succeeding paragraph, if at any time (a) the Company shall have delivered to
the Trustee for cancellation all Senior Debt Securities of any Series
theretofore
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authenticated and delivered (other than any Senior Debt Securities which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08) and the Company shall have paid or caused to be
paid all sums payable by it hereunder, or (b) if the Company has irrevocably
deposited or caused to be deposited with the Trustee under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds in trust solely for the benefit of the holders of the Senior
Debt Securities of such Series for that purpose, money or direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which guarantee or obligation the full faith and
credit of the United States is pledged ("U.S. Government Obligations") maturing
as to principal and interest in such amounts and at such times as are
sufficient, as verified in a Certificate of a Firm of Independent Public
Accountants, without consideration of any reinvestment of such interest, to pay
principal of and interest or sinking funds on the outstanding Senior Debt
Securities of such Series to maturity or redemption as the case may be,
provided that the Trustee or any paying agent shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of said principal and interest and said sinking fund
with respect to the Senior Debt Securities of such Series. The Company may
make an irrevocable deposit pursuant to this Section 13.01 only if at such time
the Company shall have delivered to the Trustee and any such paying agent an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions herein precedent to the satisfaction and discharge of this Indenture
have been complied with and the Opinion of Counsel further states that the
making of such deposit (i) does not contravene or violate any provision of any
indenture, mortgage, loan agreement or other similar agreement known to such
counsel to which the Company is a party or by which it or any of its property
is bound, and (ii) does not require registration by the deposit referred to
above under the Investment Company Act of 1940, as amended.
Notwithstanding the foregoing paragraph, the Company's obligations in
Sections 2.06, 2.08, 5.01, 5.02, 5.05, 6.01, 8.06, 8.10, 13.04 and 13.05 shall
survive until the Senior Debt Securities of such Series are no longer
outstanding. Thereafter, the Company's obligations in Section 8.06, 13.04 and
13.05 shall survive.
After any such irrevocable deposit, the Trustee upon request shall (i)
acknowledge in writing the discharge of the Company's obligations under the
Senior Debt Securities of such Series and this Indenture except for those
surviving obligations specified above, (ii) execute, deliver and file
termination statements, releases and other instruments of satisfaction, release
and discharge with respect to such released security interest and (iii) assign,
transfer and deliver to the Company all the Trustee's rights and interest in
and to that portion of the trust estate so released.
SECTION 13.02. Subject to the provisions of Section 13.04, all moneys
or U.S. Government Obligations deposited with the Trustee pursuant to Section
13.01 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Company acting as its own paying
agent), to the holders of the particular Senior Debt Securities of the
applicable Series, for the payment or redemption of which such moneys or U.S.
Government Obligations have been deposited with the Trustee, of all sums due
and to become due thereon for principal and interest and premium, if any, and
Sinking Fund payments.
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SECTION 13.03. In connection with the satisfaction and discharge of
this Indenture with respect to the Senior Debt Securities of any Series, all
moneys then held by any paying agent under the provisions of this Indenture
with respect to such Series of Senior Debt Securities shall, upon demand of the
Company, be repaid to it or paid to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys.
SECTION 13.04. Any moneys deposited with the Trustee or any paying
agent for the payment of the principal of and premium, if any, or interest on
Senior Debt Securities of any Series and not applied but remaining unclaimed by
the holders of Senior Debt Securities of such Series for two years after the
date upon which such payment shall have become due, shall be held uninvested
and without liability for interest and shall be repaid to the Company by the
Trustee or by such paying agent on demand; and the holder of any of the Senior
Debt Securities of the applicable Series entitled to receive such payment shall
thereafter look only to the Company for the payment thereof and all liability
of the Trustee or any paying agent with respect to such moneys 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 a week for two successive weeks (in each case on any day of
the week) in an authorized newspaper a notice that said moneys have not been so
applied and that after a date named therein any unclaimed balance of said
moneys then remaining will be returned to the Company.
SECTION 13.05. If the Trustee is unable to apply any money or U.S.
Government Obligations in accordance with Section 13.01 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 the Senior Debt Securities of
any Series affected thereby shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.01, until such time as the Trustee
is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 13.01; provided, however, that if the Company has made
any payment of interest on or principal of any Senior Debt Securities of such
Series because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such Senior Debt Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 14.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Senior Debt Security, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any
successor corporation, or any of them, because of the creation of the
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indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in the Senior Debt
Securities of any Series or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer or director, as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in the
Senior Debt Securities of any Series or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Senior Debt Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 15.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer of any
corporation that shall at that time be the successor of the Company.
SECTION 15.03. The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers or rights reserved to the Company and thereupon such power or
right so surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 15.04. Any notice or demand which by any provisions of this
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Senior Debt Securities to or on the Company shall be delivered
by hand or sent by first-class mail, postage prepaid, addressed (until another
address is filed by the Company with the Trustee), as follows: Centex
Corporation, 0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Corporate
Secretary. Any notice, direction, request or demand by any holder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at any corporate trust office of the Trustee.
SECTION 15.05. Where this Indenture provides for notice to holders of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage prepaid, to
each holder affected by such event, at his address as it appears on the Senior
Debt Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. In any case where
notice to holders 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, and any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given.
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When this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to holders of Senior Debt Securities when such
notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
SECTION 15.06. This Indenture, each indenture supplemental thereto
and each Senior Debt Security shall be deemed to be a contract made under the
laws of the State of Texas, and for all purposes shall be construed in
accordance with the laws of said State, provided that the rights, duties,
immunities and standard of care of the Trustee shall be governed by and
construed in accordance with the laws of the United States of America.
SECTION 15.07. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent (including any covenant compliance with which constitutes
a condition precedent) provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such document is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(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 such
person, 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 or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 15.08. In any case where the date of maturity of interest on
or principal of the Senior Debt Securities or the date fixed for redemption of
any Senior Debt Security shall not be a business day then payment of interest
or principal and premium, if any, to the holders need not be made on such date,
but may be made on the next succeeding business day with the same force and
effect as if made on the date of maturity or the date fixed for redemption, and
no interest shall accrue for the period after such date.
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SECTION 15.09. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included in this Indenture by any of
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such
required provision shall control.
SECTION 15.10. In case any provision in this Indenture or in the
Senior Debt Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 15.11. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 15.12. Unless specified otherwise in the Series Supplement,
interest on the Senior Debt Securities shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 15.13. Chase Bank of Texas, National Association hereby
accepts the trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
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IN WITNESS WHEREOF, CENTEX CORPORATION has caused this Indenture to be
signed by its President or one of its Vice Presidents, and its corporate seal
to be affixed hereunto, and the same to be attested by its Secretary or an
Assistant Secretary, and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION has caused
this Indenture to be signed by one of its duly authorized trust officers and
its corporate seal to be affixed hereunto, and the same to be duly attested,
all as of the day and year first above written.
CENTEX CORPORATION
By:
------------------------------
Xxxxx X. Xxxxxxx
Vice President and Treasurer
ATTEST:
-----------------------------------
Xxxx X. Xxxxxxxxx, Associate
General Counsel and Assistant
Secretary
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------
Title:
-----------------------------
ATTEST:
-----------------------------------
[Name and title]
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XXXXX XX XXXXX ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxxxxx,
known to me to be the persons and officers whose names are subscribed to the
foregoing instrument and acknowledged to me that the same was the act of the
said CENTEX CORPORATION, a Nevada corporation, and that they executed the same
as the act of said corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of October,
1998.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
-------------------------------------------
(Type or print name)
--------------------------------
STATE OF TEXAS ss.
ss.
COUNTY OF DALLAS ss.
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared _________________________, known to me
to be the persons and officers whose names are subscribed to the foregoing
instrument and acknowledged to me that the same was the act of the said CHASE
BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association, and that
they executed the same as the act of said banking association for the purposes
and consideration therein expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of October,
1998.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
-------------------------------------------
(Type or print name)
-------------------------------
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