1
================================================================================
EXHIBIT 4(a)
THE XXXXXXX-XXXXXXXX COMPANY
and
CHEMICAL BANK, as Trustee
----------
Indenture
Dated as of February 1, 1996
-----------
Debt Securities
================================================================================
2
TABLE OF CONTENTS*/
Page
----
RECITALS OF THE COMPANY..................................................... 1
ARTICLE I
Definitions
-----------
SECTION 1.01. Certain Terms Defined..................................... 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act......... 15
SECTION 1.03. Rules of Construction..................................... 16
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally........................................... 17
SECTION 2.02. Form of Trustee's Certificate of Authentication........... 17
SECTION 2.03. Principal Amount; Issuable in Series...................... 18
SECTION 2.04. Execution of Debt Securities.............................. 22
SECTION 2.05. Authentication and Delivery of Debt Securities............ 22
SECTION 2.06. Denomination of Debt Securities........................... 24
SECTION 2.07. Registration of Transfer and Exchange..................... 24
SECTION 2.08. Temporary Debt Securities................................. 26
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities...... 27
SECTION 2.10. Cancellation of Surrendered Debt Securities............... 28
SECTION 2.11. Provisions of the Indenture and Debt Securities for the
Sole Benefit of the Parties and the Holders............. 28
SECTION 2.12. Payment of Interest; Interest Rights Preserved............ 28
SECTION 2.13. Securities Denominated in Foreign Currencies.............. 29
SECTION 2.14. Wire Transfers............................................ 30
--------------
*/ The Table of Contents is not part of the Indenture.
3
Contents, p. 2
SECTION 2.15. Securities Issuable in the Form of a Global Security...... 30
SECTION 2.16. Medium Term Securities.................................... 33
SECTION 2.17. Defaulted Interest........................................ 34
SECTION 2.18. Judgments................................................. 35
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article.................................. 36
SECTION 3.02. [Reserved]................................................ 36
SECTION 3.03. Notice of Redemption; Selection of Debt Securities........ 36
SECTION 3.04. Payment of Debt Securities Called for Redemption.......... 38
SECTION 3.05. Mandatory and Optional Sinking Funds...................... 39
SECTION 3.06. Redemption of Debt Securities for Sinking Fund............ 40
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
SECTION 4.01. Payment of Principal of, and Premium, If Any, and
Interest on, Debt Securities............................ 42
SECTION 4.02. Maintenance of Offices or Agencies for Registration
of Transfer, Exchange and Payment of Debt Securities.... 43
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.... 43
SECTION 4.04. Duties of Paying Agents, etc.............................. 43
SECTION 4.05. Statement by Officers as to Default....................... 45
SECTION 4.06. Existence................................................. 45
SECTION 4.07. Limitation on Liens....................................... 45
SECTION 4.08. Limitation on Sale/Leaseback Transactions................. 46
4
Contents, p. 3
ARTICLE V
Holders' Lists and Reports by the Company and the Trustee
---------------------------------------------------------
SECTION 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information ...... 47
SECTION 5.02. Communications to Holders................................. 47
SECTION 5.03. Reports by Company........................................ 47
SECTION 5.04. Reports by Trustee........................................ 48
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default......................................... 49
SECTION 6.02. Collection of Indebtedness by Trustee, etc................ 52
SECTION 6.03. Application of Moneys Collected by Trustee................ 54
SECTION 6.04. Limitation on Suits by Holders............................ 55
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise
of Rights Not a Waiver of Default....................... 56
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Debt Securities to Direct Trustee and to Waive
Default................................................. 57
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but
May Withhold Such Notice in Certain Circumstances....... 58
SECTION 6.08. Requirement of an Undertaking to Pay Costs in
Certain Suits Under the Indenture or Against the
Trustee................................................. 58
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and Responsibilities....................... 59
SECTION 7.02. Certain Rights of Trustee................................. 60
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in
Debt Securities......................................... 62
5
Contents, p. 4
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt
Securities.............................................. 62
SECTION 7.05. Moneys Received by Trustee to be Held in Trust............ 63
SECTION 7.06. Compensation and Reimbursement............................ 63
SECTION 7.07. Right of Trustee to Rely on an Officers'
Certificate Where No Other Evidence
Specifically Prescribed................................. 64
SECTION 7.08. Separate Trustee; Replacement of Trustee.................. 64
SECTION 7.09. Successor Trustee by Merger............................... 66
SECTION 7.10. Eligibility; Disqualification............................. 66
SECTION 7.11. Preferential Collection of Claims Against Company......... 67
SECTION 7.12. Compliance with Tax Laws.................................. 67
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders............................. 68
SECTION 8.02. Proof of Execution of Instruments and of Holding
of Debt Securities...................................... 68
SECTION 8.03. Who May Be Deemed Owner of Debt Securities................ 68
SECTION 8.04. Instruments Executed by Holders Bind Future
Holders; Record Dates................................... 69
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental Indenture May
Be Entered into Without Consent of Holders.............. 70
SECTION 9.02. Modification of Indenture with Consent of
Holders of Debt Securities.............................. 72
SECTION 9.03. Effect of Supplemental Indentures......................... 74
SECTION 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures................................... 74
6
Contents, p. 5
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. Consolidations and Mergers of the Company................. 75
SECTION 10.02. Rights and Duties of Successor Corporation................ 75
ARTICLE XI
Satisfaction and Discharge of Indenture;
----------------------------------------
Defeasance; Unclaimed Moneys
----------------------------
SECTION 11.01. Applicability of Article.................................. 76
SECTION 11.02. Satisfaction and Discharge of Indenture; Defeasance....... 76
SECTION 11.03. Conditions to Defeasance.................................. 78
SECTION 11.04. Application of Trust Money................................ 80
SECTION 11.05. Repayment to Company...................................... 80
SECTION 11.06. Indemnity for U.S. Government Obligations................. 80
SECTION 11.07. Reinstatement............................................. 80
ARTICLE XII
Miscellaneous Provisions
------------------------
SECTION 12.01. Successors and Assigns of Company Bound by Indenture...... 81
SECTION 12.02. Acts of Board, Committee or Officer of Successor
Company Valid........................................... 81
SECTION 12.03. Required Notices or Demands............................... 81
SECTION 12.04. Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York....... 82
SECTION 12.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the
Company................................................. 82
SECTION 12.06. Payments Due on Legal Holidays............................ 83
SECTION 12.07. Provisions Required by Trust Indenture Act to Control..... 83
SECTION 12.08. Computation of Interest on Debt Securities................ 83
SECTION 12.09. Rules by Trustee, Paying Agent and Registrar.............. 83
SECTION 12.10. No Recourse Against Others................................ 83
7
Contents, p. 6
SECTION 12.11. Severability.............................................. 84
SECTION 12.12. Effect of Headings........................................ 84
SECTION 12.13. Indenture May Be Executed in Counterparts................. 84
SIGNATURES .......................................................... 84
8
THE XXXXXXX-XXXXXXXX COMPANY
Debt Securities
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
INDENTURE
TIA SECTION SECTION
----------- ---------
310(a)(1).................................................. 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. 7.10
(a)(4).................................................. 7.10
(a)(5).................................................. 7.10
(b) .................................................... 7.10
(c) ................................................... N.A.**
311(a)..................................................... 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312(a) .................................................... 5.01
(b)..................................................... 5.02
(c) .................................................... 5.02
313(a)..................................................... 5.04
(b)(1).................................................. 5.04
(b)(2).................................................. 5.04
(c) .................................................... 12.03
(d) .................................................... 5.04
--------
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
9
2
INDENTURE
TIA SECTION SECTION
----------- ---------
314(a)(1).................................................. 5.03(a)
(a)(2).................................................. 5.03(b)
(a)(3).................................................. 5.03(a)
(b)
(a)(4).................................................. 12.03
(b) .................................................. 4.05
(c)(1).................................................. N.A.
(c)(2).................................................. 12.05
(c)(3).................................................. 12.05
(d)..................................................... N.A.
(e)..................................................... N.A.
(f)..................................................... 12.05
315(a)..................................................... 7.01(a)
(b)..................................................... 6.07
12.03
(c)..................................................... 7.01
(d)..................................................... 7.01
(e)..................................................... 6.08
316(a)(last sentence)...................................... 1.01
(a)(1)(A)............................................... 6.06
(a)(1)(B)............................................... 6.06
(a)(2).................................................. 9.01(d)
(b)..................................................... 6.04
(c)..................................................... 5.05
317(a)(1).................................................. 6.02
(a)(2).................................................. 6.02
(b)..................................................... 4.04
318(a)..................................................... 12.07
10
INDENTURE dated as of February 1, 1996,
between THE XXXXXXX-XXXXXXXX COMPANY, a corporation
duly organized and existing under the laws of the
State of Ohio (hereinafter sometimes called the
"Company"), and CHEMICAL BANK, a New York banking
corporation (hereinafter sometimes called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which
the Debt Securities are authenticated, issued and delivered, and in
consideration of the premises, and of the purchase and acceptance of the Debt
Securities by the holders thereof, the Company and the Trustee covenant and
agree with each other, for the benefit of the respective Holders from time to
time of the Debt Securities or any series thereof, as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Terms Defined. 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 or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
the Trust Indenture Act and in the
11
2
Securities Act as in force as of the date of execution of this
Indenture.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as of the time of determination, (i) if the obligation in
respect of such Sale/Leaseback Transaction is a Capitalized Lease Obligation,
the amount of such obligation determined in accordance with GAAP and included
in the financial statements of the lessee or (ii) if the obligation in respect
of such Sale/Leaseback Transaction is not a Capitalized Lease Obligation, the
total Net Amount of Rent required to be paid by the lessee under such lease
during the remaining term thereof (including any period for which the lease has
been extended), discounted from the respective due dates thereof to such
determination date at the rate per annum borne by the Debt Securities
compounded semiannually.
"Board of Directors" means either the Board of Directors of
the Company or any duly authorized committee or subcommittee of such Board,
except as the context may otherwise require.
"Business Day" means, when used with respect to any Place of
Payment specified pursuant to Section 2.03, any day that is not a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies in such Place of Payment are authorized or obligated by law to close,
except as otherwise specified pursuant to Section 2.03.
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with GAAP; and the amount of
Indebtedness represented by such obligation shall be the capitalized amount of
such obligation determined in accordance with GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such
12
3
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests (including partnership interests) in (however
designated) the equity of such Person, including any Preferred Stock, but
excluding any debt securities convertible into such equity.
"Commodity Price Protection Agreement" means, in respect of
any Person, any forward contract, commodity swap agreement, commodity option
agreement or other similar agreement or arrangement designed to protect such
Person against fluctuations in commodity prices.
"Common Stock" means the common stock, par value $1.00 per
share, of the Company, which stock is currently listed on the New York Stock
Exchange.
"Company" means The Xxxxxxx-Xxxxxxxx Company, an Ohio
corporation, and, subject to the provisions of Article X, shall also include
its successors and assigns.
"Company Order" means a written order of the Company, signed
by its Chairman of the Board, Vice Chairman, the President or any Vice
President (or any other officer performing similar functions) and by its
Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary (or
any other officer performing similar functions).
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its Subsidiaries for the total assets (less
accumulated depletion, depreciation or amortization, allowances for doubtful
receivables, other applicable reserves and other properly deductible items) of
the Company and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP, after giving effect to purchase accounting and after
deducting therefrom, to the extent included in total assets, in each case as
determined on a consolidated basis in accordance with GAAP (without
duplication): (i) the aggregate amount of liabilities of the Company and its
Subsidiaries which may properly be classified as current liabilities (including
taxes accrued as estimated); (ii) current Indebtedness and current maturities
of long- term Indebtedness; (iii) minority
13
4
interests in the Company's Subsidiaries held by Persons other than the Company
or a Wholly Owned Subsidiary of the Company; and (iv) unamortized debt discount
and expenses and other unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, licenses, organization or
developmental expenses and other intangible items.
"Corporate Trust Office of the Trustee" or other similar term
means the office of the Trustee at which the corporate trust business of the
Trustee shall, at any particular time, be principally administered in the
United States of America, except that with respect to the presentation of Debt
Securities for payment or for registration of transfer and exchange, such term
shall also mean the office of the Trustee or the Trustee's agent in the Borough
of Manhattan, the city and state of New York, at which at any particular time
its corporate agency business shall be conducted.
"Currency" means Dollars or Foreign Currency.
"Currency Exchange Protection Agreement" means, in respect of
any Person, any foreign exchange contract, currency swap agreement, currency
option or other similar agreement or arrangement designed to protect such
Person against fluctuations in currency exchange rates.
"Debt Security" or "Debt Securities" has the meaning stated in
the first recital of this Indenture and more particularly means any debt
security or debt securities, as the case may be of any series authenticated and
delivered under this Indenture.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 2.03 or 2.15, with respect to Registered Securities
of any series issuable or issued in whole or in part in the form of one or more
Global Securities, The Depository Trust Company, New York, New York, or any
successor thereto registered as a clearing agency under the Exchange Act or
other applicable statute or regulations.
"Dollar" or "$" means such currency of the United States as at
the time of payment is legal tender for the payment of public and private
debts.
14
5
"Dollar Equivalent" means, with respect to any monetary amount
in a Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase of Dollars with the
applicable Foreign Currency as quoted by Chemical Bank (unless another
comparable financial institution is designated by the Company) in New York, New
York at approximately 11:00 a.m. (New York time) on the date two Business Days
prior to such determination.
"European Currency Units" has the meaning assigned to it from
time to time by the Council of the European Communities.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Floating Rate Security" means a Debt Security that provides
for the payment of interest at a variable rate determined periodically by
reference to an interest rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued by the government
of any country other than the United States or a composite currency (including
European Currency Units) the value of which is determined by reference to the
values of the currencies of any group of countries.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time, including those set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession.
All ratios and computations based on GAAP contained in this Indenture shall be
computed in conformity with GAAP consistently applied.
"Global Security" means with respect to any series of Debt
Securities issued hereunder, a Debt Security which
15
6
is executed by the Company and authenticated and delivered by the Trustee to
the Depositary or its custodian or pursuant to the Depositary's instruction,
all in accordance with this Indenture and any Indentures supplemental hereto,
or resolution of the Board of Directors and set forth in an Officers'
Certificate, which shall be registered in the name of the Depositary or its
nominee and which shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, all the Outstanding Debt Securities of
such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due and interest rate or method of determining interest.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations of
such Person pursuant to any Interest Rate Protection Agreement, Currency
Exchange Protection Agreement, Commodity Price Protection Agreement or other
similar agreement.
"Holder," "Holder of Debt Securities" or other similar terms
means a Registered Holder.
"incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be incurred
by such Subsidiary at the time it becomes a Subsidiary. The terms "incurred",
"incurrence" and "incurring" shall each have a correlative meaning.
16
7
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication),
(i) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(ii) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of
credit, banker's acceptances or other similar instruments or credit
transactions (including reimbursement obligations with respect
thereto), other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through
(iv) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than
the third Business Day following receipt by such Person of a demand
for reimbursement following payment on the letter of credit;
(vi) all Indebtedness of other Persons secured by a Lien on
any asset of such Person, whether or not such Indebtedness is assumed
by such Person; provided, however, that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such
asset at such date of determination and (B) the amount of such
Indebtedness of such other Persons;
(vii) all Indebtedness of other Persons to the extent Guaranteed
by such Person; and
(viii) to the extent not otherwise included in this definition,
obligations in respect of Hedging Obligations.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and
the maximum liability,
17
8
upon the occurrence of the contingency giving rise to the obligation, of any
contingent obligations at such date. Notwithstanding the foregoing, the term
"Indebtedness" excludes (i) any indebtedness of the Company or any Subsidiary to
the Company or another Subsidiary and (ii) any Guarantee by the Company or any
Subsidiary of indebtedness of the Company or another Subsidiary.
"Indenture" means this instrument as originally executed, or,
if amended or supplemented as herein provided, as so amended or supplemented
and shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental Indenture is entered into
with respect thereto.
"Interest Rate Protection Agreement" means, in respect of any
Person, any interest rate swap agreement, interest rate option agreement,
interest rate cap agreement, interest rate collar agreement, interest rate
floor agreement or other similar agreement or arrangement designed to protect
such Person against fluctuations in interest rates.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).
"Net Amount of Rent" as to any lease for any period means the
aggregate amount of rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of maintenance and
repairs, insurance, taxes, assessments, water rates and similar charges. In
the case of any lease that is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as payable under such lease subsequent to the first
date upon which it may be so terminated.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman, the President or any Vice President
(or other officers performing similar functions) and by the Treasurer, the
Secretary or any Assistant Treasurer or Assistant Secretary of the Company (or
other officers performing similar functions). Each such certificate shall
include the statements provided for in Section 12.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel for the Company (which counsel may
18
9
be an employee of the Company), or outside counsel for the Company, in each
case acceptable to the Trustee. Each such opinion shall include the statements
provided for in Section 12.05, if applicable.
"Original Issue Discount Debt Security" means any Debt
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.01.
"Outstanding", when used with respect to any series of Debt
Securities, means, as of the date of determination, all Debt Securities of that
series theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore cancelled by
the Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities of that series for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any paying agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent) for the Holders of such Debt
Securities; provided, that, if such Debt Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Debt Securities of that series which have been paid
pursuant to Section 2.09 or in exchange for or in lieu of which other
Debt Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Debt Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it
that such Debt Securities are held by a bona fide purchaser in whose
hands such Debt Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Debt Securities owned by the Company or any other obligor upon the
Debt Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and
19
10
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or an Affiliate of the Company or of
such other obligor. In determining whether the Holders of the requisite
principal amount of Outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Debt Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 6.01. In
determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Debt Security denominated in one or more Foreign Currencies that
shall be deemed to be Outstanding for such purposes shall be the Dollar
Equivalent, determined in the manner provided as contemplated by Section 2.03 on
the date of original issuance of such Debt Security, of the principal amount
(or, in the case of any Original Issue Discount Security, the Dollar Equivalent
on the date of original issuance of such Security of the amount determined as
provided in the preceding sentence above) of such Debt Security.
"pari passu", as applied to the ranking of any Indebtedness of
a Person in relation to other Indebtedness of such Person, means that each such
Indebtedness either (i) is not subordinate in right of payment to any
Indebtedness or (ii) is subordinate in right of payment to the same
Indebtedness as is the other, and is so subordinate to the same extent, and is
not subordinate in right of payment to each other or to any Indebtedness as to
which the other is not so subordinate.
"Permitted Liens" means, with respect to any Person, (a)
pledges or deposits by such Person under worker's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (including government
20
11
contracts, but excluding contracts for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States government
bonds to secure performance, surety or appeal bonds to which such Person is a
party or which are otherwise required of such Person, or deposits as security
for contested taxes or import duties or for the payment of rent or other
obligations of like nature, in each case incurred in the ordinary course of
business; (b) Liens imposed by law, such as carriers', warehousemen's,
laborers', materialmen's, landlords', vendors', workmen's, operators',
producers' and mechanics' Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceedings; (c) Liens for property
taxes, assessments and other governmental charges or levies not yet delinquent
or which are being contested in good faith by appropriate proceedings; (d)
survey exceptions, encumbrances, easements, defects, irregularities or
deficiencies in title to easements, or reservations of or with respect to, or
rights of others for or with respect to, licenses, rights-of-way, sewers,
electric and other utility lines and usages, telegraph and telephone lines,
pipelines, surface use, operation of equipment, permits, servitudes and other
similar matters, or zoning or other restrictions as to the use of real property
or Liens incidental to the conduct of the business of such Person or to the
ownership of its properties which, in all such cases, were not incurred in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in
the operation of the business of such Person; (e) Liens existing on or provided
for under the terms of agreements existing on the date of this Indenture; (f)
Liens on property at the time the Company or any of its Subsidiaries acquired
the property or the entity owning such property, including any acquisition by
means of a merger or consolidation with or into the Company; provided, however,
that any such Lien may not extend to any other property owned by the Company or
any of its Subsidiaries; (g) Liens securing a Hedging Obligation so long as
such Hedging Obligation is of the type customarily entered into in connection
with, and is entered into for the purpose of, limiting risk; (h) Liens on
accounts receivable or inventory to secure working capital or revolving credit
indebtedness incurred in the ordinary course of business; (i) Purchase Money
Liens; (j) Liens securing only Indebtedness of a Wholly Owned Subsidiary of the
Company to the Company or one or more Wholly Owned Subsidiaries of the Company;
(k) Liens on property or shares of stock of another Person at the time such
other Person
21
12
becomes a Subsidiary of such Person; provided, however, that such Liens are not
created, incurred or assumed in connection with, or in contemplation of, such
other Person becoming such a Subsidiary of such Person; (l) Liens created,
assumed or existing in connection with a tax-free financing; (m) Liens
resulting from the deposit of funds or evidences of Indebtedness in trust for
the purpose of defeasing Indebtedness of the Company or any of its
Subsidiaries; (n) legal or equitable encumbrances deemed to exist by reason of
negative pledges or the existence of any litigation or other legal proceeding
and any related lis pendens filing (excluding any attachment prior to judgment,
judgment lien or attachment lien in aid of execution on a judgment); (o) rights
of a common owner of any interest in property held by such Person; (p) Liens
placed upon any real property now owned or hereafter acquired by the Company or
any of its Subsidiaries securing Indebtedness in an amount up to 80% of the
fair market value of such real property; and (q) Liens to secure any
refinancing, refunding, extension, renewal or replacement (or successive
refinancings, refundings, extensions, renewals or replacements), as a whole, or
in part, of any Indebtedness secured by any Lien referred to in the foregoing
clauses (e) through (l) and (p); provided, however, that (i) such new Lien
shall be limited to all or part of the same property that secured the original
Lien (plus improvements on such property) and (ii) the Indebtedness secured by
such Lien at such time is not increased to any amount greater than the sum of
(A) the outstanding principal amount or, if greater, committed amount of the
Indebtedness described under clauses (e) through (l) and (p) at the time the
original Lien became a Permitted Lien under this Indenture and (B) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt
Securities of any series, the place or places where the principal of, and
premium, if any, and interest on, the Debt Securities of that series are
payable as specified pursuant to Section 2.03.
22
13
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Principal Property" means any manufacturing plant or
manufacturing facility, located within the United States of America (other than
its territories and possessions), owned or leased by the Company or any
Restricted Subsidiary, unless, in the opinion of the Board of Directors, such
plant, facility or property is not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries as an entirety.
"Purchase Money Lien" means a Lien on property securing
Indebtedness incurred by the Company or any of its Subsidiaries to provide
funds for all or any portion of the cost of acquiring, constructing, altering,
expanding, improving or repairing such property or assets used in connection
with such property.
"Registered Holder" means the Person in whose name a
Registered Security is registered in the Debt Security Register (as defined in
Section 2.07(a)).
"Registered Security" means any Debt Security registered as to
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trustee Administration Department of the
Trustee, including any vice president, any senior trust officer, any trust
officer or any other officer of the Trustee performing functions similar to
those performed by the persons who at the time shall be such officers, and any
other officer of the Trustee to whom corporate trust matters are referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means at any time any Subsidiary of
the Company (i) substantially all the property of which is located, or
substantially all of the business of which is carried on, within the United
States of America (other than its territories or possessions) and (ii) which
23
14
owns or leases a Principal Property or which, in the event of a Sale/Leaseback
Transaction, will own or lease a Principal Property.
"Sale/Leaseback Transaction" means an arrangement relating to
Principal Property owned on the date of this Indenture or thereafter acquired
whereby the Company or any of its Restricted Subsidiaries transfers such
Principal Property to a Person and the Company or any of its Restricted
Subsidiaries leases it from such Person.
"Secured Indebtedness" means any Indebtedness of the Company
secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means a Subsidiary of any Person that
would be a "significant subsidiary" as defined in Rule 405 under the Securities
Act as in effect on the date of this Indenture.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of the Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly or indirectly,
by (i) such Person, (ii) such Person and one or more Subsidiaries of such
Person or (iii) one or more Subsidiaries of such Person.
"Trade Payables" means, with respect to any Person, any
accounts payable or any Indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business of such Person in connection with the acquisition of goods or
services.
24
15
"Trustee" initially means Chemical Bank and any other Person
or Persons appointed as such from time to time pursuant to Section 7.08, and,
subject to the provisions of Article VII, includes its or their successors and
assigns. If at any time there is more than one such Person, "Trustee" as used
with respect to the Debt Securities of any series shall mean the Trustee with
respect to the Debt Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly
provided) means the Trust Indenture Act of 1939 as in force at the date of this
Indenture as originally executed and, to the extent required by law, as
amended.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more members of which is, for United States Federal
income tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all
the Capital Stock of which (other than directors' qualifying shares) is owned
by the Company or one or more Wholly Owned Subsidiaries.
"Yield to Maturity" means the yield to maturity, calculated at
the time of issuance of a series of Debt Securities, or, if applicable, at the
most recent redetermination of interest on such series and calculated in
accordance with accepted financial practice.
25
16
SECTION 1.02. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the Trust
Indenture Act which are incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms have the following
meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, reference to another statute or
defined by rules of the Securities and Exchange Commission have the meanings
assigned to them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) except as provided in the final proviso to the definition
of "Outstanding" contained in Section 1.01, the principal
amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated
such date prepared in accordance with GAAP; and
26
17
(7) the principal amount of any Preferred Stock shall be the
greater of (i) the maximum liquidation value of such Preferred Stock or
(ii) the maximum mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock.
ARTICLE II
Debt Securities
SECTION 2.01. Forms Generally. The Debt Securities of each
series shall be in substantially the form established without the approval of
any Holder by or pursuant to a resolution of the Board of Directors or in one
or more Indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as the
Company may deem appropriate (and, if not contained in a supplemental Indenture
entered into in accordance with Article IX, as are not prohibited by the
provisions of this Indenture) or as may be required or appropriate to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange on which such series of Debt Securities may be listed, or
to conform to general usage, or as may, consistently herewith, be determined by
the officers executing such Debt Securities, as evidenced by their execution of
the Debt Securities.
The definitive Debt Securities of each series, if any, shall
be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Debt Securities, as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication
27
18
on all Debt Securities authenticated by the Trustee shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
As Trustee
By
------------------
Authorized Officer
SECTION 2.03. Principal Amount; Issuable in Series. The
aggregate principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series.
There shall be established, without the approval of any Holders, in or pursuant
to a resolution of the Board of Directors and set forth in an Officers'
Certificate, or established in one or more Indentures supplemental hereto,
prior to the issuance of Debt Securities of any series any or all of the
following:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other
Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of the series pursuant to this Article
II);
(3) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest, if any,
or the method of determining such rate or rates, the date or dates
from
28
19
which such interest shall accrue, the interest payment dates on which
such interest shall be payable, or the method by which such date will
be determined, in the case of Registered Securities, the record dates
for the determination of Holders thereof to whom such interest is
payable, and the basis upon which interest will be calculated if other
than that of a 360-day year of twelve thirty-day months;
(5) the place or places, if any, in addition to or instead of
the Corporate Trust Office of the Trustee, where the principal of, and
premium, if any, and interest on, Debt Securities of the series shall
be payable;
(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Company or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
price or prices at which and the period or periods within which and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligations;
(8) the terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for Common Stock, Preferred
Stock (which may be represented by depositary shares), other Debt
Securities or warrants for Common Stock, Preferred Stock or
Indebtedness or other securities of any kind of the Company or any
other obligor and the terms and conditions upon which such conversion
or exchange shall be effected, including the initial conversion or
exchange price or rate, the conversion or exchange period and any other
provision in addition to or in lieu of those described herein;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(10) if the amount of principal, premium, if any, or interest
on Debt Securities of the series may be determined with reference to an
index or pursuant to a
29
20
formula, the manner in which such amounts will be determined;
(11) if the principal amount payable at the Stated Maturity of
Debt Securities of the series will not be determinable as of any one
or more dates prior to such Stated Maturity, the amount which will be
deemed to be such principal amount as of any such date for any
purpose, including the principal amount thereof which will be due and
payable upon any maturity other than the Stated Maturity or which will
be deemed to be Outstanding as of any such date (or, in any such case,
the manner in which such deemed principal amount is to be determined);
(12) the applicability of Section 11.02(b) and any changes or
additions to Article XI, including the addition of additional
covenants that may be subject to the covenant defeasance option
pursuant to Section 11.02(b)(ii);
(13) if other than such coin or Currency of the United States
as at the time of payment is legal tender for payment of public and
private debts, the coin or Currency or Currencies or units of two or
more Currencies in which payment of the principal of, and premium, if
any, and interest on, Debt Securities of the series shall be payable;
and the manner of determining the equivalent thereof in the currency
of the United States of America for purposes of the definition of
Dollar Equivalent;
(14) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series which shall
be payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 or provable in bankruptcy pursuant to Section
6.02;
(15) any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in the
right of the Trustee or the Holders to declare the principal of, and
premium and interest on, such Debt Securities due and payable;
(16) if the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities, the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
30
21
Debt Securities in definitive registered form if other than as
provided for in Section 2.15; and the Depositary for such Global
Security or Securities and the form of any legend or legends to be
borne by any such Global Security or Securities in addition to or in
lieu of the legend referred to in Section 2.15;
(17) any trustees, authenticating or paying agents, transfer
agents or registrars;
(18) the applicability of, and any addition to or change in
the covenants and definitions currently set forth in this Indenture or
in the terms currently set forth in Article X, including conditioning
any merger, conveyance, transfer or lease permitted by Article X upon
the satisfaction of an Indebtedness coverage standard by the Company
and Successor Company (as defined in Article X);
(19) the terms, if any, of any Guarantee of the payment of
principal of, and premium, if any, and interest on, Debt Securities of
the series and any corresponding changes to the provisions of this
Indenture as currently in effect;
(20) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this
Indenture as currently in effect;
(21) with regard to Debt Securities of the series that do not
bear interest, the dates for certain required reports to the Trustee;
and
(22) any other terms of the Debt Securities of the series
(which terms shall not be prohibited by the provisions of this
Indenture).
All Debt Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Board of Directors and as set forth in
such Officers' Certificate or in any such Indenture supplemental hereto.
31
22
SECTION 2.04. Execution of Debt Securities. The Debt
Securities shall be signed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President or a Vice President (or any other
officer performing similar functions) and by its Treasurer, Secretary, an
Assistant Treasurer or an Assistant Secretary (or any other officer performing
similar functions). Such signatures upon the Debt Securities may be the manual
or facsimile signatures of the present or any future such authorized officers
and may be imprinted or otherwise reproduced on the Debt Securities. The seal
of the Company, if any, may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate
of authentication substantially in the form hereinbefore recited, signed
manually by an authorized officer of 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 Debt Security executed by the Company shall
be conclusive evidence that the 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 Debt Securities shall cease to be such officer before the Debt
Securities so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Debt Securities nevertheless may
be authenticated and delivered or disposed of as though the Person who signed
such Debt Securities had not ceased to be such officer of the Company; and any
Debt Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Debt Security, shall be the proper
officers of the Company, although at the date of such Debt Security or of the
execution of this Indenture any such Person was not such officer.
SECTION 2.05. Authentication and Delivery of Debt Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debt Securities of any series executed by
the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debt Securities in accordance with a Company
Order. In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to
32
23
receive, and (subject to Section 7.01) shall be fully protected in relying
upon:
(1) a copy of any resolution or resolutions of the Board of
Directors, certified by the Secretary or Assistant Secretary of the
Company, authorizing the terms of issuance of any series of Debt
Securities;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate pursuant to Sections 2.03 and
12.05; and
(4) an Opinion of Counsel prepared in accordance with Section
12.05 which shall also state:
(a) that the form of such Debt Securities has been
established in conformity with the provisions of this
Indenture;
(b) that the terms of such Debt Securities have been
established in conformity with the provisions of this
Indenture;
(c) that such Debt Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting the enforcement of creditors' rights
generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles
of general applicability;
(d) that the Company has the corporate power to issue
such Debt Securities and has duly taken all necessary
corporate action with respect to such issuance;
(e) that the issuance of such Debt Securities will
not contravene the Amended Articles of Incorporation or Code
of Regulations, as amended, of the Company; and
33
24
(f) that authentication and delivery of such Debt
Securities and the execution and delivery of any supplemental
Indenture will not violate the terms of this Indenture.
Such Opinion of Counsel need express no opinion as to whether
a court in the United States would render a money judgment in a currency other
than that of the United States.
The Trustee shall have the right to decline to authenticate
and deliver any Debt Securities under this Section 2.05 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors, trustees or vice presidents, and
being advised by counsel, shall determine that such action would expose the
Trustee to personal liability to existing Holders.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Debt Securities of any series.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Debt Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, paying
agent or agent for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any
series, each Debt Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Debt Securities. Unless
otherwise provided in the form of Debt Security for any series, the Debt
Securities of each series shall be issuable only as Registered Securities in
such denominations as shall be specified or contemplated by Section 2.03. In
the absence of any such specification with respect to the Debt Securities of
any series, the Debt Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.07. Registration of Transfer and Exchange. (a)
The Company shall keep or cause to be kept a register for each series of
Registered Securities issued hereunder (hereinafter referred to as the "Debt
Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the transfer of
34
25
Registered Securities as in this Article II provided. At all reasonable times
the Debt Security Register shall be open for inspection by the Trustee. Subject
to Section 2.15, upon due presentment for registration of transfer of any
Registered Security at any office or agency to be maintained by the Company in
accordance with the provisions of Section 4.02, the Company shall execute and
the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of authorized
denominations for a like aggregate principal amount and tenor.
Unless and until otherwise determined by the Company by
resolution of the Board of Directors, the register of the Company for the
purpose of registration, exchange or registration of transfer of the Registered
Securities shall be kept at the Corporate Trust Office of the Trustee and, for
this purpose, the Trustee shall be designated "Registrar".
Registered Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for a like aggregate
principal amount of Registered Securities of the same series and tenor of other
authorized denominations. Subject to Section 2.15, Registered Securities to be
exchanged shall be surrendered at the office or agency to be maintained by the
Company as provided in Section 4.02, and the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor the Registered
Security or Registered Securities which the Holder making the exchange shall be
entitled to receive.
Whenever any Debt Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Debt Securities that the Holder making the exchange is entitled to receive.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of
Debt Securities shall be the valid obligations of the Company, evidencing the
same debt, and (except as expressly provided otherwise herein) entitled to the
same
35
26
benefits under this Indenture as the Debt Securities surrendered for such
exchange or transfer.
No service charge shall be made for any exchange or
registration of transfer of Debt Securities (except as provided by Section
2.09), 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, other
than those expressly provided in this Indenture to be made at the Company's own
expense or without expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Debt Securities for a period of 15 days before the
day of any mailing of notice of redemption of Debt Securities of such series or
(b) to register the transfer of or exchange any Debt Securities selected,
called or being called for redemption (except the unredeemed portion of Debt
Securities called for redemption in part).
SECTION 2.08. Temporary Debt Securities. Pending the
preparation of definitive Debt Securities of any series, the Company may
execute and the Trustee shall authenticate and deliver temporary Debt
Securities (printed, lithographed, photocopied, typewritten or otherwise
produced) of any authorized denomination, and substantially in the form of the
definitive Debt Securities in lieu of which they are issued, in registered
form, and with such omissions, insertions and variations as may be appropriate
for temporary Debt Securities, all as may be determined by the Company with the
concurrence of the Trustee. Temporary Debt Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every
temporary 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 Debt Securities.
If temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series may be
exchangeable for definitive Debt Securities of such series upon surrender of
the temporary Debt Securities of such series at the office or agency of the
Company at a Place of Payment for such series, without charge to the Holder
thereof, except as provided in Section 2.07 in connection with a transfer. In
addition, upon surrender for
36
27
cancellation of any one or more temporary Debt Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Debt Securities of the
same series of authorized denominations and of like tenor. Until so exchanged,
temporary Debt Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Debt Securities of such
series.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt
Securities. If (i) any mutilated Debt Security is surrendered to the Trustee
at the Corporate Trust Office or (ii) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Debt
Security, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them and any paying
agent harmless, and neither the Company nor the Trustee receives notice that
such Debt Security has been acquired by a bona fide purchaser, then the Company
shall execute and, upon a Company Order, the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Debt Security, a new Debt Security of the same series of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding. Upon the issuance of any substituted 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. In case any Debt Security which has matured or
is about to mature or which has been called for redemption shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing
a substituted Debt Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debt Security) if the
applicant for such payment shall furnish the Company and the Trustee with such
security or indemnity as either may require to save it harmless from all risk,
however remote, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Debt Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant
to the provisions of this Section 2.09 by virtue of the fact that any Debt
Security is destroyed, lost or stolen shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen 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
37
28
Debt Securities of that series duly issued hereunder. All 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 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 2.10. Cancellation of Surrendered Debt Securities.
All Debt Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to the Company or any paying agent
or a Registrar, be delivered to the Trustee for cancellation by it, or if
surrendered to the Trustee, shall be cancelled by it, and no Debt Securities
shall be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. All cancelled Debt Securities held by the
Trustee may be destroyed by the Trustee unless otherwise directed by a Company
Order delivered within five Business Days after such cancellation. If the
Company shall acquire any of the Debt Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented thereby unless and until the same are delivered or surrendered to
the Trustee for cancellation.
SECTION 2.11. Provisions of the Indenture and Debt Securities
for the Sole Benefit of the Parties and the Holders. Nothing in this Indenture
or in the Debt Securities, expressed or implied, shall give or be construed to
give to any Person, other than the parties hereto, the Holders or any Registrar
or paying agent, 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, the Holders and any Registrar and paying agents.
SECTION 2.12. Payment of Interest; Interest Rights Preserved.
(a) Interest on any Registered Security that is payable and is punctually paid
or duly provided for on any interest payment date shall be paid to the Person
in whose name such Registered Security is registered at the close of business
on the regular record date for such interest notwithstanding the cancellation
of such Registered Security upon any transfer or exchange subsequent to the
regular record date. Payment of interest on Registered
38
29
Securities shall be made at the Corporate Trust Office of the Trustee (except
as otherwise specified pursuant to Section 2.03), or at the option of the
Company, by check mailed to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register or, if provided pursuant to
Section 2.03 and in accordance with arrangements satisfactory to the Trustee,
at the option of the Registered Holder by wire transfer to an account
designated by the Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12
and Section 2.17, each Debt Security of a particular series delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu
of any other Debt Security of the same series shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
SECTION 2.13. Securities Denominated in Foreign Currencies.
(a) Except as otherwise specified pursuant to Section 2.03 for Registered
Securities of any series, payment of the principal of, and premium, if any, and
interest on, Registered Securities of such series will be made in Dollars.
(b) For the purposes of calculating the principal amount of
Debt Securities of any series denominated in a Foreign Currency for any purpose
under this Indenture, the principal amount of such Debt Securities at any time
Outstanding shall be deemed to be the Dollar Equivalent of such principal
amount as of the date of any such calculation.
In the event any Foreign Currency in which any payment with
respect to any series of Debt Securities may be made ceases to be a freely
convertible Currency on United States Currency markets, for any date thereafter
on which payment of principal of, or premium, if any, or interest on, the Debt
Securities of a series is due, the Company shall select the Currency of payment
for use on such date, all as provided in the Debt Securities of such series.
In such event, the Company shall, as provided in the Debt Securities of such
series, notify the Trustee of the Currency which it has selected to constitute
the funds necessary to meet the Company's obligations on such payment date and
of the amount of such Currency to be paid. Such amount shall be determined as
provided in the Debt Securities of such series. The payment to the Trustee
with respect to such payment date shall be made by the Company solely in the
Currency so selected.
39
30
SECTION 2.14. Wire Transfers. Notwithstanding any other
provision to the contrary in this Indenture, the Company may make any payment
of monies required to be deposited with the Trustee on account of principal of,
or premium, if any, or interest on, the Debt Securities (whether pursuant to
optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer in immediately available funds to an account designated by the
Trustee on or before the date such moneys are to be paid to the Holders of the
Debt Securities in accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global
Security. (a) If the Company shall establish pursuant to Sections 2.01 and
2.03 that the Debt Securities of a particular series are to be issued in whole
or in part in the form of one or more Global Securities, then the Company shall
execute and the Trustee or its agent shall, in accordance with Section 2.05,
authenticate and deliver, such Global Security or Securities, which (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, the Outstanding Debt Securities of such series to be
represented by such Global Security or Securities, or such portion thereof as
the Company shall specify in an Officers' Certificate, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the Depositary
or pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Debt Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary", or such
other legend as may then be required by the Depositary for such Global Security
or Securities.
(b) Notwithstanding any other provision of this Section 2.15
or of Section 2.07 to the contrary, and subject to the provisions of paragraph
(c) below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary
to the Depositary or another
40
31
nominee of the Depositary, or by the Depositary or a nominee of the Depositary
to a successor Depositary for such Global Security selected or approved by the
Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
or Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the
Company shall execute, and the Trustee or its agent, upon receipt of a Company
Order for the authentication and delivery of such individual Debt Securities of
such series in exchange for such Global Security or Securities, will
authenticate and deliver, individual Debt Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to
the principal amount of the Global Security or Securities in exchange for such
Global Security or Securities.
(ii) The Company may at any time and in its sole discretion
determine that the Debt Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Debt Securities of such series in
exchange in whole or in part for such Global Security or Securities, will
authenticate and deliver individual Debt Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal to
the principal amount of such series or portion thereof in exchange for such
Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.01
and 2.03 with respect to Debt Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Debt Securities
of such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
41
32
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the
entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be cancelled by the Trustee or its agent. Except as
provided in the preceding paragraph, Registered Securities issued in exchange
for a Global Security pursuant to this Section 2.15 shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Registrar. The Trustee or the
Registrar shall deliver such Registered Securities to the Persons in whose
names such Registered Securities are so registered.
(v) Payments in respect of the principal of and interest on
any Debt Securities registered in the name of the Depositary or its nominee
will be payable to the Depositary or such nominee in its capacity as the
registered owner of such Global Security. The Company and the Trustee may
treat the Person in whose names the Debt Securities, including the Global
Security, are registered as the owner thereof for the purpose of receiving such
payments and for any and all other purposes whatsoever. None of the Company,
the Trustee, any Registrar, the paying agent or any agent of the Company or the
Trustee will have any responsibility or liability for (a) any aspect of the
records relating to or payments made on account of the beneficial ownership
interests of the Global Security by the Depositary or its nominee or any of the
Depositary's direct or indirect participants, or for maintaining, supervising
or reviewing any records of the Depositary, its nominee or any of its direct or
indirect participants relating to the beneficial
42
33
ownership interests of the Global Security, (b) the payments to the beneficial
owners of the Global Security of amounts paid to the Depositary or its nominee,
or (c) any other matter relating to the actions and practices of the
Depositary, its nominee or any of its direct or indirect participants. None of
the Company, the Trustee or any such agent will be liable for any delay by the
Depositary, its nominee, or any of its direct or indirect participants in
identifying the beneficial owners of the Debt Securities, and the Company and
the Trustee may conclusively rely on, and will be protected in relying on,
instructions from the Depositary or its nominee for all purposes (including
with respect to the registration and delivery, and the respective principal
amounts, of the Debt Securities to be issued).
SECTION 2.16. Medium Term Securities. Notwithstanding any
contrary provision herein, if all Debt Securities of a series are not to be
originally issued at one time, it shall not be necessary for the Company to
deliver to the Trustee an Officers' Certificate, resolutions of the Board of
Directors, supplemental Indenture, Opinion of Counsel or Company Order or any
other document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 12.05
at or prior to the time of authentication of each Debt Security of such series
if such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such
series to be issued; provided, however, that any subsequent request by the
Company to the Trustee to authenticate Debt Securities of such series upon
original issuance shall constitute a representation and warranty by the Company
that, as of the date of such request, the statements made in the Officers'
Certificate delivered pursuant to Section 2.05 or 12.05 shall be true and
correct as if made on such date; provided further, however, that, with respect
to Debt Securities of a series which are not to be issued at one time, the
Trustee shall be entitled to such Opinion of Counsel only once at or prior to
the time of the first authentication of Debt Securities of such series and the
Opinion of Counsel described above shall state:
(a) that, when the terms of such Debt Securities shall have
been established pursuant to a Company Order or pursuant to such
procedures as may be specified from time to time by a Company Order,
such terms will have been established in conformity with the
provisions of this Indenture;
(b) that such Debt Securities, when (i) executed by the
Company, (ii) completed, authenticated and made
43
34
available for delivery by the Trustee in accordance with this
Indenture, (iii) issued and delivered by the Company and (iv) paid
for, all as contemplated by and in accordance with the aforesaid
Company Order or specified procedures, as the case may be, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting the enforcement of
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability; and
(c) and the other matters required by Section 2.05(4)(a), (d),
(e) and (f).
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the
telephonic or written order of Persons designated in such written order (any
such telephonic instructions to be promptly confirmed in writing by such
Person) and that such Persons are authorized to determine, consistent with the
Officers' Certificate, supplemental Indenture or resolution of the Board of
Directors relating to such written order, such terms and conditions of such
Debt Securities as are specified in such Officers' Certificate, supplemental
Indenture or such resolution.
Notwithstanding any contrary provision herein, if all Debt
Securities of a series are not to be originally issued at one time, any
Officers' Certificate required to be delivered pursuant to Section 2.03 need
not set forth all of the terms of the Debt Securities required to be
established pursuant to Section 2.03, but need set forth only the manner in
which such terms shall be established.
SECTION 2.17. Defaulted Interest. Any interest on any Debt
Security of a particular series which is payable, but is not punctually paid or
duly provided for, on the dates and in the manner provided in the Debt
Securities of such series and in this Indenture (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Registered Holder thereof
on the relevant record date by virtue of having been such Registered Holder,
and such Defaulted Interest may be paid by the Company, at its
44
35
election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on
each such Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first class postage pre-paid, to
each Holder thereof at its address as it appears in the Security
Register, not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Registered
Securities of such series are registered at the close of business on
such special record date.
(ii) The Company may make payment of any Defaulted Interest
on the Registered Securities of such series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which the Registered Securities of such series may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this clause, such
45
36
manner of payment shall be deemed practicable by the Trustee.
SECTION 2.18. Judgments. The Company may provide pursuant to
Section 2.03 for Debt Securities of any series that (a) the obligation, if any,
of the Company to pay the principal of, and premium, if any, and interest on,
the Debt Securities of such series in a Foreign Currency or Dollars (the
"Designated Currency") as may be specified pursuant to Section 2.03 is of the
essence and agrees that, to the fullest extent possible under applicable law,
judgments in respect of Debt Securities of such series shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of, and premium, if any, and interest on,
such Debt Securities shall, notwithstanding any payment in any other Currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the Designated Currency that the Holder receiving such payment
may, in accordance with normal banking procedures, purchase with the sum paid
in such other Currency (after any premium and cost of exchange) on the Business
Day in the country of issue of the Designated Currency or in the international
banking community (in the case of a composite currency) immediately following
the day on which such Holder receives such payment; (c) if the amount in the
Designated Currency that may be so purchased for any reason falls short of the
amount originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE III
Redemption of Debt Securities
SECTION 3.01. Applicability of Article. The provisions of
this Article shall be applicable to the Debt Securities of any series which are
redeemable before their Stated Maturity except as otherwise specified as
contemplated by Section 2.03 for Debt Securities of such series.
SECTION 3.02. [Reserved.]
SECTION 3.03. Notice of Redemption; Selection of Debt
Securities. In case the Company shall desire to
46
37
exercise the right to redeem all or, as the case may be, any part of the Debt
Securities of any series in accordance with their terms, the Company shall fix
a date for redemption and shall, in the manner provided in Section 12.03, give
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the Holders of Debt Securities of such series so
to be redeemed as a whole or in part. The notice if given in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. In any case, failure to give such notice or
any defect in the notice to the Holder of any Debt Security of a series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Debt Security of such
series.
Each such notice of redemption shall specify (i) the date
fixed for redemption; (ii) the redemption price at which Debt Securities of
such series are to be redeemed; (iii) the Place or Places of Payment that
payment will be made upon presentation and surrender of such Debt Securities;
(iv) that any interest accrued to the date fixed for redemption will be paid as
specified in said notice; (v) that the redemption is for a sinking fund payment
(if applicable); (vi) that, unless the Company defaults in making such
redemption payment, on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue and in the case of
Original Issue Discount Securities original issue discount will cease to
accrue; (vii) the terms of the Debt Securities of that series pursuant to which
the Debt Securities of that series are being redeemed and that no
representation is made as to the correctness or accuracy of the CUSIP number,
if any, listed in such notice or printed on the Debt Securities of that series;
and (viii) if less than all the Outstanding Debt Securities of any series and
tenor are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to be
redeemed. If less than all the Debt Securities of a series are to be redeemed
the notice of redemption shall specify the CUSIP numbers of the Debt Securities
of that series to be redeemed. In case any Debt Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of that series in principal amount equal to the
unredeemed portion thereof will be issued.
47
38
At least 60 days before the redemption date, unless the
Trustee consents to a shorter period, the Company shall give notice to the
Trustee of the redemption date, the principal amount of Debt Securities to be
redeemed and the series and terms of the Debt Securities pursuant to which such
redemption will occur. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
On or prior to the redemption date for any Registered
Securities, the Company shall deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) an amount of money in the Currency in which such Debt Securities are
denominated (except as provided pursuant to Section 2.03) sufficient to pay the
redemption price of such Registered Securities or any portions thereof that are
to be redeemed on that date.
If less than all the Debt Securities of a series are to be
redeemed (other than pursuant to sinking fund redemptions) the Trustee shall
select the Debt Securities of that series or portions thereof (in multiples of
$1,000) to be redeemed by lot or by such other method as the Trustee considers
fair and appropriate. In any case where more than one Registered Security of
such series is registered in the same name, the Trustee in its discretion may
treat the aggregate principal amount so registered as if it were represented by
one Registered Security of such series. The Trustee shall promptly notify the
Company in writing of the Debt Securities selected for redemption and, in the
case of any Debt Securities selected for partial redemption, the principal
amount thereof to be redeemed. If any Debt Security called for redemption
shall not be so paid upon surrender thereof on such redemption date, the
principal, premium, if any, and interest shall bear interest until paid from
the redemption date at the rate borne or provided for by the Debt Securities of
that series. Provisions of this Indenture that apply to Debt Securities called
for redemption also apply to portions of Debt Securities called for redemption.
SECTION 3.04. Payment of Debt Securities Called for
Redemption. If notice of redemption has been given as provided in Section
3.03, the Debt Securities or portions of Debt Securities of the series with
respect to which such notice has been given shall become due and payable on the
date and at the Place or Places of Payment stated in such notice at the
applicable redemption price, together with any
48
39
interest accrued to the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Debt Securities at the
applicable redemption price, together with any interest accrued to said date)
any interest on such Debt Securities or portions of such Debt Securities so
called for redemption shall cease to accrue and any original issue discount in
the case of Original Issue Discount Securities shall cease to accrue. On
presentation and surrender of such Debt Securities at the Place or Places of
Payment in said notice specified, the said Debt Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with any interest accrued thereon to the date fixed
for redemption.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the Corporate Trust Office of the Trustee or such other office
or agency of the Company as is specified pursuant to Section 2.03 with, if the
Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Debt Security or Debt Securities of the same series, of
like tenor and form, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Debt Security so surrendered; except that, if a
Global Security is so surrendered, the Company shall execute, and the Trustee
shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered.
SECTION 3.05. Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of Debt
Securities of any series, resolution of the Board of Directors or a
supplemental Indenture is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Debt Securities of any series, resolution of the Board of Directors or
a supplemental Indenture is herein referred to as an "optional sinking fund
payment".
49
40
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any Debt Securities of a series in cash, the
Company may at its option (a) deliver to the Trustee Debt Securities of that
series theretofore purchased or otherwise acquired by the Company or (b)
receive credit for the principal amount of Debt Securities of that series which
have been redeemed either at the election of the Company pursuant to the terms
of such Debt Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Debt Securities, resolution
or supplemental Indenture; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited
for such purpose by the Trustee at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 3.06. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of
Debt Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, any resolution or
supplemental Indenture, the portion thereof, if any, which is to be satisfied
by payment of cash in the Currency in which the Debt Securities of such series
are denominated (except as provided pursuant to Section 2.03) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to this Section 3.06 (which Debt Securities,
if not previously redeemed, will accompany such certificate), the basis for
such credit, that such Debt Securities have not previously been so credited and
whether the Company intends to exercise its right to make any permitted
optional sinking fund payment with respect to such series. Such certificate
shall also state that no Event of Default has occurred and is continuing with
respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company to deliver such certificate (or to
deliver the Debt Securities specified in this paragraph) shall not constitute a
Default, but such failure shall require that the sinking fund payment due on
the next succeeding sinking fund payment date for that series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of such
Debt Securities subject to a
50
41
mandatory sinking fund payment without the option to deliver or credit Debt
Securities as provided in this Section 3.06 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments
made in cash which shall equal or exceed $100,000 (or a lesser sum if the
Company shall so request) with respect to the Debt Securities of any particular
series shall be applied by the Trustee on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund
payment date, on the sinking fund payment date following the date of such
payment) to the redemption of such Debt Securities at the Redemption Price
specified in such Debt Securities, resolution or supplemental Indenture for
operation of the sinking fund together with any accrued interest to the date
fixed for redemption. Any sinking fund moneys not so applied or allocated by
the Trustee to the redemption of Debt Securities shall be added to the next
cash sinking fund payment received by the Trustee for such series and, together
with such payment, shall be applied in accordance with the provisions of this
Section 3.06. Any and all sinking fund moneys with respect to the Debt
Securities of any particular series held by the Trustee on the last sinking
fund payment date with respect to Debt Securities of such series and not held
for the payment or redemption of particular Debt Securities shall be applied by
the Trustee, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of the principal of the Debt
Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed
upon such sinking fund payment date in the manner specified in the last
paragraph of Section 3.03 and the Company shall cause notice of the redemption
thereof to be given in the manner provided in Section 3.03 except that the
notice of redemption shall also state that the Debt Securities are being
redeemed by operation of the sinking fund. Such notice having been duly given,
the redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.04.
On or prior to each sinking fund payment date, the Company
shall pay to the Trustee (or, if the Company is acting as its own paying agent,
the Company shall segregate and hold in trust) in cash a sum in the Currency in
which the Debt Securities of such series are denominated (except
51
42
as provided pursuant to Section 2.03) equal to any interest accrued to the date
fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.06.
The Trustee shall not redeem any Debt Securities of a series
with sinking fund moneys or mail any notice of redemption of such Debt
Securities by operation of the sinking fund for such series during the
continuance of a Default in payment of interest on such Debt Securities or of
any Event of Default (other than an Event of Default occurring as a consequence
of this paragraph) with respect to such Debt Securities, except that if the
notice of redemption of any such Debt Securities shall theretofore have been
mailed in accordance with the provisions hereof, the Trustee shall redeem such
Debt Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such Default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such Default or
Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Event of Default or Default shall have
been cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date for such Debt Securities on which
such moneys may be applied pursuant to the provisions of this Section 3.06.
ARTICLE IV
Particular Covenants of the Company
SECTION 4.01. Payment of Principal of, and Premium, if any,
and Interest on, Debt Securities. The Company, for the benefit of each series
of Debt Securities, will duly and punctually pay or cause to be paid the
principal of, and premium, if any, and interest on, each of the Debt Securities
at the place, at the respective times and in the manner provided herein and in
the Debt Securities. Each installment of interest on the Debt Securities may
at the Company's option be paid by mailing checks for such interest payable to
the Person entitled thereto pursuant to Section 2.07(a) to the address of such
Person as it appears on the Debt Security Register or, if provided pursuant to
Section 2.03 and in accordance with arrangements satisfactory to the Trustee,
at the option of
52
43
the Registered Holder by wire transfer to an account designated by the
Registered Holder.
Principal, premium and interest of Debt Securities of any
series shall be considered paid on the date due if on such date the Trustee or
any paying agent holds in accordance with this Indenture money sufficient to
pay in the Currency in which the Debt Securities of such series are denominated
(except as provided pursuant to Section 2.03) all principal, premium and
interest then due.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Debt Securities and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for
Registration of Transfer, Exchange and Payment of Debt Securities. The Company
will maintain in each Place of Payment for any series of Debt Securities an
office or agency where Debt Securities of such series may be presented or
surrendered for payment, where Debt Securities of such series may be
surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Debt Securities of such series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all presentations, surrenders, notices and
demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or
outside of such Place of Payment), and may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of
Trustee. The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will
53
44
appoint, in the manner provided in Section 7.08, a Trustee, so that there shall
at all times be a Trustee hereunder with respect to each series of Debt
Securities.
SECTION 4.04. Duties of Paying Agents, etc. (a) The Company
shall cause each paying agent, if any, other than the Trustee, 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 4.04,
(i) that it will hold all sums held by it as such agent for
the payment of the principal of, and premium, if any, or interest on,
the Debt Securities of any series (whether such sums have been paid to
it by the Company or by any other obligor on the Debt Securities of
such series) in trust for the benefit of the Holders of the Debt
Securities of such series;
(ii) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Debt Securities of such
series) to make any payment of the principal of, and premium, if any,
or interest on, the Debt Securities of such series when the same shall
be due and payable; and
(iii) that it will at any time during the continuance of an
Event of Default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent with
respect to any series of Debt Securities, it will, on or before each due date
of the principal of, and premium, if any, or interest on, the Debt Securities
of such series, set aside, segregate and hold in trust for the benefit of the
Holders of the Debt Securities of such series a sum sufficient to pay such
principal, premium, if any, or interest so becoming due. The Company will
promptly notify the Trustee of any failure by the Company to take such action
or the failure by any other obligor on such Debt Securities to make any payment
of the principal of, and premium, if any, or interest on, such Debt Securities
when the same shall be due and payable.
(c) Anything in this Section 4.04 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, as required by this Section 4.04, such sums to be
54
45
held by the Trustee upon the same trusts as those upon which such sums were held
by the Company or such paying agent and, upon such payment by any paying agent
to the Trustee, such paying agent shall be released from all further liability
with respect to such money.
(d) Whenever the Company shall have one or more paying agents
with respect to any series of Debt Securities, it will, on each due date of the
principal of, and premium, if any, or interest on, any Debt Securities of such
series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless any such paying agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
4.04 is subject to the provisions of Section 11.05.
SECTION 4.05. Statement by Officers as to Default. The
Company will deliver to the Trustee, on or before a date not more than four
months after the end of each fiscal year of the Company (currently on a
calendar year basis) ending after the date hereof, an Officers' Certificate
(which need not comply with the requirements of Section 12.05) stating, as to
each officer signing such certificate (one of which officers shall be the
principal executive officer, principal financial officer or principal
accounting officer of the Company), that (i) in the course of his performance
of his duties as an officer of the Company he would normally have knowledge of
any Default, (ii) whether or not to the best of his knowledge any Default
occurred during such year and (iii) if to the best of his knowledge the Company
is in Default, specifying all such Defaults and what action the Company is
taking or proposes to take with respect thereto. The Company also shall comply
with Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.06. Existence. Subject to Article X, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and
55
46
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 4.07. Limitation on Liens. The Company shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or permit to exist any Lien on any Principal Property, or
shares of capital stock of any Restricted Subsidiary, whether owned on the date
of this Indenture or thereafter acquired, securing any obligation unless the
Company contemporaneously secures the Debt Securities equally and ratably with
(or prior to) such obligation. The preceding sentence shall not require the
Company to secure the Debt Securities if the Lien consists of the following:
(i) Permitted Liens; or
(ii) Liens other than those permitted in Section 4.07(i)
above, provided that the aggregate amount of all obligations secured
by Liens permitted by this Section 4.07(ii) shall not exceed 15% of
Consolidated Net Tangible Assets.
SECTION 4.08. Limitation on Sale/Leaseback Transactions. The
Company shall not, and shall not permit any of its Restricted Subsidiaries to,
enter into any Sale/Leaseback Transaction with respect to any Principal
Property unless (i) the Company or such Restricted Subsidiary would be entitled
to create a Lien on such Principal Property securing Indebtedness in an amount
equal to the Attributable Indebtedness with respect to such Sale/Leaseback
Transaction without securing the Debt Securities pursuant to Section 4.07 or
(ii) the Company, within six months from the effective date of such
Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement
(excluding retirements of Debt Securities and other Indebtedness ranking pari
passu with the Debt Securities as a result of conversions or pursuant to
mandatory sinking fund or mandatory prepayment provisions or by payment at
maturity) of Debt Securities or other Indebtedness ranking pari passu with the
Debt Securities an amount equal to the Attributable Indebtedness in respect of
such Sale/Leaseback Transaction; provided that the foregoing will not prevent
the Company or any Restricted Subsidiary from (x) entering into any
Sale/Leaseback Transaction involving a lease with a term of less than three
years or (y) entering into any Sale/Leaseback Transaction between the Company
and a Restricted Subsidiary or between Restricted Subsidiaries.
56
47
ARTICLE V
Holders' Lists and Reports
by the Company and the Trustee
SECTION 5.01. Company to Furnish Trustee Information as to
Names and Addresses of Holders; Preservation of Information. The Company
covenants and agrees that it will furnish or cause to be furnished to the
Trustee with respect to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect
to the payment of interest, if any, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Registered Holders as of such record date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and contents as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that, so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders (1) contained in the most recent list furnished to it as provided in
this Section 5.01 or (2) received by it in the capacity of paying agent or
Registrar (if so acting) hereunder.
The Trustee may destroy any list furnished to it as provided
in this Section 5.01 upon receipt of a new list so furnished.
SECTION 5.02. Communications to Holders. Holders may
communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Holders with respect to their rights under this Indenture or the Debt
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of Section 312(c) of the Trust Indenture Act.
SECTION 5.03. Reports by Company. (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
57
48
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
Exchange Act; 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 of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be 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 this Indenture as may be
required from time to time by such rules and regulations.
(c) Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 5.04. Reports by Trustee. As promptly as practicable
after each May 15 beginning with the May 15 following the date of this
Indenture, and in any event prior to July 15 in each year, the Trustee shall
mail to each Holder a brief report dated as of such May 15 that complies with
Section 313(a) of the Trust Indenture Act if and to the extent required by such
section. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act.
Reports pursuant to this Section 5.04 shall be transmitted by
mail:
(1) to all Registered Holders, as the names and addresses of
such Holders appear in the Debt Security Register;
58
49
(2) except in the case of reports under Section 313(b)(2) of
the Trust Indenture Act, to each Holder of a Debt Security of any
series whose name and address appear in the information preserved at
the time by the Trustee in accordance with Section 5.02.
A copy of each report at the time of its mailing to Holders
shall be filed with the Securities and Exchange Commission and each stock
exchange (if any) on which the Debt Securities of any series are listed. The
Company agrees to notify promptly the Trustee whenever the Debt Securities of
any series become listed on any stock exchange and of any delisting thereof.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
SECTION 6.01. Events of Default. If any one or more of the
following shall have occurred and be continuing with respect to Debt Securities
of any series (each of the following, an "Event of Default"):
(a) default in the payment of any installment of interest upon
any Debt Securities of that 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 Debt Securities of that series, as and when the same shall
become due and payable, whether at maturity, upon redemption, by
declaration, upon required repurchase or otherwise; or
(c) default in the payment of any sinking fund payment with
respect to any Debt Securities of that series, as and when the same
shall become due and payable, and continuance of such default for a
period of 30 days; or
(d) failure on the part of the Company to comply with Article
X; or
(e) 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 Debt Securities of that series, in this Indenture with
respect to such series or in any supplemental Indenture with respect
to such series (other than covenants or
59
50
agreements included solely by or for the benefit of a series of Debt
Securities thereunder other than that Series), continuing for a period
of 90 days after the date on which written notice specifying such
failure and requiring the Company to remedy the same and stating that
such notice is a "Notice of Default" hereunder shall have been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Debt Securities of that series at
the time Outstanding; or
(f) the Company or any of its Significant Subsidiaries shall
(i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code or any other Federal
or State bankruptcy, insolvency or similar law, (ii) consent to the
institution of, or fail to controvert within the time and in the
manner prescribed by law, any such proceeding or the filing of any
such petition, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator or similar official for the
Company or any such Significant Subsidiary or for a substantial part
of its property, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) admit in
writing its inability or fail generally to pay its debts as they
become due, (vii) take corporate action for the purpose of effecting
any of the foregoing, or (viii) take any comparable action under any
foreign laws relating to insolvency of the Company or any Significant
Subsidiary; or
(g) the entry of an order or decree by a court having
competent jurisdiction in the premises for (i) relief in respect of
the Company or any of its Significant Subsidiaries or a substantial
part of any of their property under Title 11 of the United States Code
or any other Federal or State bankruptcy, insolvency or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator
or similar official for the Company or any such Significant Subsidiary
or for a substantial part of any of their property (except any decree
or order appointing such official of any Significant Subsidiary
pursuant to a plan under which the assets and operations of such
Significant Subsidiary are transferred to or combined with another
Subsidiary or Subsidiaries of the Company
60
51
or to the Company) or (iii) the winding-up or liquidation of the
Company or any such Significant Subsidiary (except any decree or order
approving or ordering the winding up or liquidation of the affairs of
a Significant Subsidiary pursuant to a plan under which the assets and
operations of such Significant Subsidiary are transferred to or
combined with another Subsidiary or Subsidiaries of the Company or to
the Company); and such order or decree shall continue unstayed and in
effect for 60 consecutive days; or any similar relief is granted under
any foreign laws and the order or decree stays in effect for 60
consecutive days; or
(h) any other Event of Default provided with respect to Debt
Securities of that series;
then and in each and every case that an Event of Default described in clause
(a), (b), (c), (d), (e), (f) (other than with respect to the Company), (g)
(other than with respect to the Company) or (h) with respect to Debt Securities
of that series at the time Outstanding occurs and is continuing, unless the
principal of and interest on all the Debt Securities of that series shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Debt Securities of that series
(each such series voting as a separate class) then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by Holders), may
declare the principal of (or, if the Debt Securities of that series are
Original Issue Discount Debt Securities, such portion of the principal amount
as may be specified in the terms of that series) and interest on all the Debt
Securities of that 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 Debt Securities of that series contained
to the contrary notwithstanding. If an Event of Default described in clause
(f) or (g) (in each case with respect to the Company) occurs, then and in each
and every such case, unless the principal of and interest on all the Debt
Securities shall have become due and payable, the principal of (or, if any Debt
Securities are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms thereto) and interest on all
the Debt Securities then Outstanding hereunder shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders, anything in this Indenture or in
61
52
the Debt Securities contained to the contrary notwithstanding.
The Holders of a majority in principal amount of the Debt
Securities of a particular series by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree already rendered and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. Upon any such rescission, the parties
hereto shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the parties hereto shall
continue as though no such proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee or such
Holder, then and in every such case the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the parties hereto shall continue as though no such
proceeding had been taken.
The foregoing Events of Default shall constitute Events of
Default whatever the reason for any such Event of Default and whether it is
voluntary or involuntary or is effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Company shall deliver to the Trustee promptly after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (d), (e) or (h), its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If
an Event of Default occurs and is continuing, 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 or enforce the performance of any provision of the Debt
Securities of the affected series or this Indenture, and may prosecute any
62
53
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
Debt Securities of such series (and collect in the manner provided by law out
of the property of the Company or any other obligor upon the Debt Securities of
such series 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 Debt
Securities of any series under Title 11 of the United States Code or any other
Federal or State bankruptcy, insolvency or similar law, or in case a receiver,
trustee or other similar official shall have been appointed for its property,
or in case of any other similar judicial proceedings relative to the Company
upon the Debt Securities of any series, its creditors or its property, the
Trustee, irrespective of whether the principal of Debt Securities of any series
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 6.02, 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, premium, if any, and
interest (or, if the Debt Securities of such series are Original Issue Discount
Debt Securities, such portion of the principal amount as may be specified in
the terms of such series) owing and unpaid in respect of the Debt Securities of
such series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith) and of
the Holders thereof allowed in any such judicial proceedings relative to the
Company upon the Debt Securities of such series, 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 such Holders and of the Trustee on their behalf, and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by
each of such Holders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to such Holders,
to pay to the Trustee such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
reasonable expenses and
63
54
liabilities incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith.
All rights of action and of asserting claims under this
Indenture, or under any of the Debt Securities of any series, may be enforced
by the Trustee without the possession of any such Debt 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 as trustee of an express trust, and any recovery of judgment (except
for any amounts payable to the Trustee pursuant to Section 7.06) shall be for
the ratable benefit of the Holders of all the Debt Securities in respect of
which such action was taken.
In case of an Event of Default hereunder 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 specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee.
Any moneys or other property collected by the Trustee pursuant to Section 6.02
with respect to Debt Securities of any series shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys or other property, upon presentation of the several Debt Securities
of such series in respect of which moneys or other property have been
collected, and the notation thereon of the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of all money due the Trustee pursuant
to Section 7.06;
SECOND: In case the principal of the Outstanding Debt
Securities in respect of which such moneys have been collected shall
not have become due, to the payment of interest on the Debt Securities
of such series 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 or Yield to Maturity (in the case of Original
Issue
64
55
Discount Debt Securities) borne by the 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 Outstanding Debt
Securities in respect of which such moneys have been collected shall
have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the 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 or Yield to Maturity (in the case
of Original Issue Discount Debt Securities) borne by the Debt
Securities of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the 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 Debt
Security of such series over any Debt Security of such series, ratably
to the aggregate of such principal and premium, if any, and interest;
and
FOURTH: The remainder, if any, shall be paid to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled
to receive the same, or as a court of competent jurisdiction may
direct.
The Trustee may, but shall not be obligated to, fix a record
date and payment date for any payment to Holders pursuant to this Section 6.03.
At least 15 days before such record date, the Company shall mail to each Holder
and the Trustee a notice that states the record date, the payment date and
amount to be paid.
SECTION 6.04. Limitation on Suits by Holders. No Holder of
any Debt Security of any series shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or proceeding at law
or in equity or in bankruptcy or otherwise, upon or under or with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the
65
56
Trustee written notice of an Event of Default with respect to Debt Securities of
that same series and of the continuance thereof and unless the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debt Securities
of that series (each such series voting as a separate class) shall have made
written request upon the Trustee to institute such action or proceedings in
respect of such Event of Default in its own name as Trustee hereunder and shall
have offered 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 offer 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 6.06; it being understood and intended, and being
expressly covenanted by the Holder of every Debt Security with every other
Holder and the Trustee, that no one or more Holders shall have any right in any
manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any Holders, 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 such Holders. For the protection and
enforcement of the provisions of this Section 6.04, each and every Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision in this Indenture,
however, the right of any Holder of any Debt Security to receive payment of the
principal of, and premium, if any, and (subject to Section 2.12) interest on,
such Debt Security, on or after the respective due dates expressed or provided
for in such Debt Security, and 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 6.05. Remedies Cumulative; Delay or Omission in
Exercise of Rights Not a Waiver of Default. All powers and remedies given by
this Article VI to the Trustee or to the Holders 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 the 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 to exercise any
66
57
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 6.04, every power and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders.
SECTION 6.06. Rights of Holders of Majority in Principal
Amount of Debt Securities to Direct Trustee and to Waive Default. The Holders
of a majority in aggregate principal amount of the Debt Securities of any
series at the time Outstanding shall have the right to direct the time, method,
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with respect to the
Debt Securities of such series; provided, however, that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture, and that subject to the provisions of Section 7.01, 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 shall by a Responsible Officer or officers
determine that the action so directed would involve it in personal liability or
would be unjustly prejudicial to Holders of Debt Securities of such series not
taking part in such direction; and provided further, however, that nothing in
this Indenture contained shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by such Holders. Prior to the acceleration of the maturity of the
Debt Securities of any series, as provided in Section 6.01, the Holders of a
majority in aggregate principal amount of the Debt Securities of that series at
the time Outstanding may on behalf of the Holders of all the Debt Securities of
that series waive any past Default or Event of Default and its consequences for
that series specified in the terms thereof as contemplated by Section 2.03,
except (i) a Default in the payment of the principal of, and premium, if any,
or interest on, any of the Debt Securities or in the making of any sinking fund
payment and (ii) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected thereby. In case
of any such waiver, such Default shall cease to exist, any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture, and the Company, the Trustee and the Holders of the Debt Securities
of that series shall be restored to their former positions and
67
58
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a Default known to it with respect to a series of Debt
Securities, give to the Holders thereof, in the manner provided in Section
12.03, notice of all Defaults with respect to such series known to the Trustee,
unless such Defaults shall have been cured or waived before the giving of such
notice; provided that, except in the case of Default in the payment of the
principal of, or premium, if any, or interest on, any of the Debt Securities of
such series or in the making of any sinking fund payment with respect to the
Debt Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a committee of directors or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
thereof.
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain
Suits under the Indenture or Against the Trustee. All parties to this Indenture
agree, and each Holder of any 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 in the manner and to the extent provided in the Trust Indenture Act, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, 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 6.08 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Debt Securities of that series or to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
or premium, if any, or interest on, any Debt Security on or after the due date
for such payment expressed in such Debt Security.
68
59
ARTICLE VII
Concerning the Trustee
SECTION 7.01. Certain Duties and Responsibilities. The Trustee, prior
to the occurrence of an Event of Default and after the curing or waiving of all
Events of Default 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 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) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all Events
of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
Debt Securities of any series 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 with
respect to such series as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect to
such series 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
69
60
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;
(c) the Trustee shall not be liable for an 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
(d) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to Debt Securities of any series
in good faith in accordance with the direction of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Debt Securities of such series.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided
in Section 7.01:
(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, direction, consent, order,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently
70
61
evidenced by a Company Order (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of
Directors 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 of its selection, and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(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 Debt Securities of any series 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 reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval or other paper or
document, unless requested in writing to do so by the Holders of a majority
in aggregate principal amount of the then Outstanding Debt Securities of a
series affected by such matter; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is not, in the opinion of the Trustee, reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
investigation shall be paid by the Company
71
62
or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder;
(h) if any property other than cash shall at any time be subject to a
Lien in favor of the Holders, 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, but not required, to make advances for the purpose of preserving
such property or of discharging tax Liens or other prior Liens or
encumbrances thereon; and
(i) The Trustee shall not be charged with knowledge of any Event of
Default under Section 6.01(e) or of the identity of any Significant
Subsidiary unless either (a) a Responsible Officer of the Trustee assigned
to its Corporate Trustee Administration Department shall have actual
knowledge thereof or (b) the Trustee shall have received written notice
thereof in accordance with Section 12.03 from the Company or any Registered
Holder.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities. The recitals contained herein, in the Debt Securities (except 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 Debt Securities of any series, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and that
the statements made by it or to be made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate. The Trustee shall not be
accountable for the use or application by the Company of any of the Debt
Securities or of the proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt
Securities. The Trustee or any paying agent or
72
63
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities and subject to the provisions of the Trust Indenture
Act relating to conflicts of interest and preferential claims may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
paying agent or Registrar.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. Subject
to the provisions of Section 11.05, 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. The Trustee shall be under no liability for interest
on any moneys received by it hereunder. So long as no Event of Default shall
have occurred and be continuing, all interest allowed on any such moneys shall
be paid from time to time to the Company upon a Company Order.
SECTION 7.06. Compensation and Reimbursement. The Company covenants
and agrees to pay in Dollars to the Trustee such compensation as the Company and
the Trustee from time to time agree in writing 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 herein, the Company will pay or reimburse in Dollars 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 agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence, willful misconduct or bad faith. The Company also
covenants to indemnify in Dollars the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence, wilful
misconduct or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim of liability in connection with the exercise or performance of
any of its powers or duties hereunder. The obligations of the Company under this
Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. The Company and the Holders agree that such additional indebtedness
shall be
73
64
secured by a Lien prior to that of the Debt Securities upon all property and
funds held or collected by the Trustee, as such, except funds held in trust for
the payment of principal of, and premium, if any, or interest on, particular
Debt Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(f) or (g) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed. Except as otherwise provided in
Section 7.01, 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 or omitting 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 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 7.08. Separate Trustee; Replacement of Trustee. The Company
may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property;
74
65
(4) the Trustee otherwise becomes incapable of acting; or
(5) the Trustee consolidates, merges or converts, or transfers its
assets as set forth in Section 7.09; provided that (a) the Company delivers
written notice of its intention to replace the Trustee to the resulting,
surviving or transferee corporation within five calendar days after the
Company receives notice from the Trustee pursuant to Section 7.09 of the
occurrence of such consolidation, merger or conversion, or transfer and (b)
during the period of time from and including the effective date of such
consolidation, merger or conversion, or transfer through and including the
date that the Company delivers written notice pursuant to clause (a) above
and removes the Trustee, there exists no Event of Default or Default.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Debt Securities of a particular series
and, in the latter case, such Holders do not reasonably promptly appoint a
successor Trustee, or if a vacancy exists in the office of Trustee for any
reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee. No resignation
or removal of the Trustee and no appointment of a successor Trustee shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Debt Securities of each applicable series. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
75
66
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series permitted to do so pursuant to the Trust
Indenture Act may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee for the Debt
Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.06 shall continue for
the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
trustee with respect to the Debt Securities of one or more series, the Company,
any retiring Trustee and each successor or separate Trustee with respect to the
Debt Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (2) that shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee unless the
Company provides written notice to and removes such resulting, surviving or
transferee corporation in accordance with Section 7.08(5). The Trustee shall
provide written notice to the Company of such consolidation, merger or
conversion, or transfer promptly after the occurrence thereof, but in no event
later than five calendar days thereafter. Such notice shall include the
effective date of such consolidation, merger or conversion, or transfer.
76
67
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the 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 deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. No obligor upon
the Debt Securities of a particular series or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve
as Trustee upon the Debt Securities of such series. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof; provided, however, that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act this Indenture or any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to
comply with all United States Federal income tax information reporting and
withholding requirements applicable to it with respect to payments of premium
(if any) and interest on the Debt Securities,
77
68
whether acting as Trustee, Security Registrar, paying agent or otherwise with
respect to the Debt Securities.
ARTICLE VIII
Concerning the Holders
SECTION 8.01. Evidence of Action by Holders. Whenever in this
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of any or all series may take action
(including the making of any demand or request, the giving of any direction,
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 by any instrument or any number of instruments
of similar tenor executed by Holders in Person or by agent or proxy appointed in
writing.
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities. Subject to the provisions of Sections 7.01, 7.02 and 12.09, proof of
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with the provisions of this Article VIII.
The fact and date of the execution of any such instrument or proxy, or
the authority of the Person executing the same, may be proved in any manner
which the Trustee deems sufficient.
The ownership of Registered Securities of any series shall be proved
by the Debt Security Register or by a certificate of the Registrar for such
series.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to due
presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Section
2.12) interest on such Registered Security and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Registrar shall
be affected by
78
69
any notice to the contrary; and all such payments so made to any such 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 moneys
payable upon any such Registered Security.
SECTION 8.04. Instruments Executed by Holders Bind Future Holders;
Record Dates. At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the Holders
of the percentage in aggregate principal amount of the Debt Securities of any
series specified in this Indenture in connection with such action and subject to
the following paragraph, any Holder of a Debt Security which is shown by the
evidence to be included in the Debt Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
Corporate Trust Office and upon proof of holding as provided in Section 8.02,
revoke such action so far as concerns such Debt Security. Except as aforesaid
any such action taken by the Holder of any Debt Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Debt
Security and of any Debt Security issued upon registration of transfer thereof
or in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Debt Security or such other Debt
Securities. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debt Securities of any 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 Securities of such series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Registered Securities of any series
entitled to give their consent or take any other action required or permitted to
be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Holders of Registered Securities at the close of business on such record date
(or their duly designated proxies), and only those Persons, (i) shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders of
Registered Securities after such record date and (ii) shall be taken into
account for the purpose of determining whether Holders of the requisite
proportion of Debt Securities of such series Outstanding have authorized or
agreed or consented to such action, and for that purpose the Debt Securities of
79
70
such series Outstanding shall be computed as of such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Purposes for Which Supplemental Indenture May Be Entered
into Without Consent of Holders. The Company, when authorized by a resolution of
the Board of Directors, and the Trustee may from time to time and at any time,
without the consent of Holders, enter into an Indenture or Indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof) for one or more
of the following purposes:
(a) to evidence the succession pursuant to Article X of another Person
to the Company, or successive successions, and the assumption by the
Successor Company (as defined in Section 10.01) of the covenants,
agreements and obligations of the Company in this Indenture and in the Debt
Securities;
(b) to surrender any right or power herein conferred upon the Company,
to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
all or any series of Debt Securities (and if such covenants are to be for
the benefit of less than all series of Debt Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) as the Board of Directors shall consider to be for the protection
of the Holders of such 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; provided, 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
80
71
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 any or all series of Debt Securities to waive
such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein, in any supplemental Indenture or in any Debt Securities
of any series that may be defective or inconsistent with any other
provision contained herein, in any supplemental Indenture or in the Debt
Securities of such series;
(d) to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental hereto
under the Trust Indenture Act as then in effect, except that nothing herein
contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act;
(e) 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 as shall not adversely affect the
interests of any Holders of Debt Securities of any series;
(f) to add Guarantees with respect to the Debt Securities or to secure
the Debt Securities;
(g) to make any change that does not adversely affect the rights of
any Holder;
(h) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
however, that any such addition, change or elimination not otherwise
permitted under this Section 9.01 shall (i) neither (A) apply to any Debt
Security of any series created prior to the execution of such supplemental
Indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Debt Security with respect to such
provision or (ii) shall become effective only when there is no such Debt
Security Outstanding;
81
72
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; and
(j) to establish the form or terms of Debt Securities of any series as
permitted by Sections 2.01 and 2.03.
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 adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Debt Securities at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
SECTION 9.02. Modification of Indenture with Consent of Holders of
Debt Securities. Without notice to any Holder but with the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of the 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 as in force at the
date of 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
82
73
Indenture or of modifying in any manner the rights of the Holders of the Debt
Securities of such series; provided, that no such supplemental Indenture,
without the consent of the Holders of each Debt Security so affected, shall (i)
reduce the percentage in principal amount of Debt Securities of any series whose
Holders must consent to an amendment; (ii) reduce the rate of or extend the time
for payment of interest on any Debt Security; (iii) reduce the principal of or
extend the Stated Maturity of any Debt Security; (iv) reduce the premium payable
upon the redemption of any Debt Security or change the time at which any Debt
Security may or shall be redeemed in accordance with Article III; (v) make any
Debt Security payable in Currency other than that stated in the Debt Security;
(vi) release any security that may have been granted in respect of the Debt
Securities; or (vii) make any change in Section 6.06 or this Section 9.02.
A supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has been expressly included solely for
the benefit of one or more particular series of Debt Securities or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental Indenture unless such supplemental Indenture adversely
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 9.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice
83
74
to all such Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution of
any supplemental Indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
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 Sections 7.01 and 7.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
SECTION 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures. Debt Securities of any series authenticated and
delivered after the execution of any supplemental Indenture pursuant to the
provisions of this Article IX 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. New Debt Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental Indenture may
be prepared and executed by the Company, authenticated by the Trustee and
delivered in exchange for the Debt Securities of such series then Outstanding.
Failure to make the appropriate notation or to issue a new Debt Security of such
series shall not affect the validity of such amendment.
84
75
ARTICLE X
Consolidation, Merger, Sale or Conveyance
SECTION 10.01. Consolidations and Mergers of the Company. The Company
shall not consolidate with or merge with or into any Person, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all its assets (in
one transaction or a series of related transactions), unless: (i) either (a) the
Company shall be the continuing Person in the case of a merger or (b) the
resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia and the
Successor Company shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debt Securities according to their
tenor, and this Indenture; (ii) immediately after giving effect to such
transaction (and treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary of the Company as a result of such
transaction as having been incurred by the Successor Company or such Subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, lease or other disposition and such
supplemental Indenture (if any) comply with this Indenture.
SECTION 10.02. Rights and Duties of Successor Corporation. In case of
any consolidation or merger, or conveyance or transfer (other than by way of
lease) of all or substantially all the assets of the Company in accordance with
Section 10.01, the Successor Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the Company, and
the predecessor corporation shall be relieved of any further obligation under
the Indenture and the Debt Securities. The Successor Company thereupon may cause
to be signed, and may issue either in its own name or in the name of the
Company, any or all the Debt Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of the Successor Company, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Debt Securities which
previously shall have been signed
85
76
and delivered by the officers of the Company to the Trustee for authentication,
and any Debt Securities which the Successor Company thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Debt Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such 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 Debt
Securities thereafter to be issued as may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture; Defeasance;
Unclaimed Moneys
SECTION 11.01. Applicability of Article. If, pursuant to Section 2.03,
provision is made for the defeasance of Debt Securities of a series and if the
Debt Securities of such series are denominated and payable only in Dollars
(except as provided pursuant to Section 2.03), then the provisions of this
Article XI relating to defeasance of Debt Securities shall be applicable except
as otherwise specified pursuant to Section 2.03 for Debt Securities of such
series. Defeasance provisions, if any, for Debt Securities denominated in a
Foreign Currency may be specified pursuant to Section 2.03.
SECTION 11.02. Satisfaction and Discharge of Indenture; Defeasance.
(a) If at any time (i) the Company shall have delivered to the Trustee for
cancellation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) any Debt Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.09 and (2) Debt Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Company as
provided in Section 11.05) or (ii) all Debt Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company shall
86
77
deposit with the Trustee as trust funds the entire amount in the Currency in
which such Debt Securities are denominated (except as otherwise provided
pursuant to Section 2.03) sufficient (in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee) without consideration of any reinvestment and
after payment of all taxes or other charges and assessments in respect thereof
payable by the Trustee, to pay at maturity or upon redemption all Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due on such date of maturity or redemption date, as the case may be, no
default with respect to the Debt Securities has occurred and is continuing on
the date of such deposit, such deposit does not result in a breach or violation
of, or constitute a default under, the Indenture or any other agreement or
instrument to which the Company is a party and the Company delivers an Officers'
Certificate and an Opinion of Counsel each stating that such conditions have
been complied with and if in either case the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal of, and premium, if
any, and interest on, such Debt Securities) with respect to the Debt Securities
of such series, and the Trustee, on demand of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, (i)
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series ("legal defeasance option")
or (ii) its obligations with respect to the Debt Securities of such series under
Sections 4.07 and 4.08 and clause (iii) of Section 10.01 and the related
operation of Section 6.01(d) (to the extent Section 6.01(d) requires the
delivery by the Company to the Trustee of the Officers' Certificate and Opinion
of Counsel described in Section 10.01(iii)) and the operation of Sections
6.01(e) (to the extent it relates to Section 4.07 or 4.08), (f) (with respect to
Significant Subsidiaries only) and (g) (with respect to Significant Subsidiaries
only) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
87
78
If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of the Debt Securities of the defeased series may not be accelerated
because of an Event of Default specified in Sections 6.01(d) (to the extent
Section 6.01(d) requires the delivery by the Company to the Trustee of the
Officers' Certificate and Opinion of Counsel described in Section 10.01(iii)),
(e) (to the extent it relates to Section 4.07 or 4.08), (f) (with respect to
Significant Subsidiaries only) and (g) (with respect to Significant Subsidiaries
only).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clause (a) above and the exercise of the legal
defeasance option in clause (b) above, the Company's obligations in Sections
2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06 and 11.07 shall survive
until the Debt Securities of the defeased series have been paid in full.
Thereafter, the Company's obligations in Sections 7.06, 11.05 and 11.06 shall
survive.
SECTION 11.03. Conditions of Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option with respect to Debt
Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent public accountants expressing
their opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium, if any,
and interest when due on all the Debt Securities of such series to maturity
or redemption, as the case may be;
88
79
(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(f) or (g) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Debt
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(8) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Debt Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied with.
89
80
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
SECTION 11.04. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities of the defeased series.
SECTION 11.05. Repayment to Company. The Trustee and any paying agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors and all liability of the Trustee or such paying
agent with respect to such money shall thereupon cease.
SECTION 11.06. Indemnity for U.S. Government Obligations. The Company
shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
90
81
ARTICLE XII
Miscellaneous Provisions
SECTION 12.01. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 12.02. Acts of Board, Committee or Officer of Successor
Company Valid. 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 Successor Company.
SECTION 12.03. Required Notices or Demands. Except as otherwise
expressly provided in this Indenture, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders to or on the Company may be given or served by
being deposited postage prepaid in a post office letter box in the United States
addressed (until another address is filed by the Company with the Trustee) as
follows: The Xxxxxxx-Xxxxxxxx Company, 000 Xxxxxxxx Xxxxxx, X.X., Xxxxxxxxx,
Xxxx 00000, Attention: Chief Financial Officer. Except as otherwise expressly
provided in this Indenture, any notice, direction, request or demand by the
Company or by any Holder to or upon the Trustee may be given or made, for all
purposes, by being deposited postage prepaid in a post office letter box in the
United States addressed to the Corporate Trust Office of the Trustee initially
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Company or the Trustee by
notice to the other may designate additional or different addresses for
subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Company
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited postage prepaid in a post office letter
box in the United States addressed to such Holder at the address of such Holder
as shown on the Debt Security Register. Any report pursuant to Section 313 of
the Trust Indenture Act shall be transmitted in compliance with subsection (c)
therein.
91
82
Any notice to Holders of Floating Rate Debt Securities regarding the
determination of a periodic rate of interest, if such notice is required
pursuant to Section 2.03, shall be sufficiently given if given in the manner
specified pursuant to Section 2.03.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect the sufficiency of such notice with respect to other
Holders. If a notice or communication is mailed in the manner provided above, it
is conclusively presumed duly given.
SECTION 12.04. Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York. This Indenture and each Debt
Security shall be deemed to be New York contracts, and for all purposes shall be
construed in accordance with the laws of said State (without reference to
principles of conflicts of law).
SECTION 12.05. Officers' Certificate and Opinion of Counsel to be
Furnished upon Application or Demand by the Company. 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 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
92
83
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 12.06. Payments Due on Legal Holidays. In any case where the
date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a Business Day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the date of maturity or the date fixed for redemption
or repayment or for the making of any sinking fund payment, and no interest
shall accrue for the period after such date. If a record date is not a Business
Day, the record date shall not be affected.
SECTION 12.07. Provisions Required by Trust Indenture Act to Control.
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 318, inclusive, of the
Trust Indenture Act, such required provision shall control.
SECTION 12.08. Computation of Interest on Debt Securities. Interest,
if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 12.09. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their functions.
SECTION 12.10. No Recourse Against Others. An incorporator or any
past, present or future director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the Company
under the Debt Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Debt
93
84
Security, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Debt Securities.
SECTION 12.11. Severability. In case any provision in this Indenture
or the Debt Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 12.12. Effect of Headings. The article and section headings
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 12.13. Indenture May Be Executed in Counterparts. 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.
The Trustee hereby accepts the trusts in this Indenture upon the terms
and conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed as of the date first written above.
THE XXXXXXX-XXXXXXXX COMPANY,
by
------------------------------
Name:
Title:
CHEMICAL BANK,
by
------------------------------
Name:
Title:
