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SUNDSTRAND CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
AS TRUSTEE
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INDENTURE
DATED AS OF DECEMBER 1, 1998
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SUNDSTRAND CORPORATION
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, as amended.]
SECTIONS OF
TRUST INDENTURE ACT THE INDENTURE
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310(a)(1)(2)................................................................ 7.09
(3)................................................................ 7.14
(4)................................................................ Inapplicable
310(b) ................................................................ 7.08 and 7.10
310(c) ................................................................ Inapplicable
311(a) 7.13(a) and (c)(1) and (2)
(b) ................................................................ 7.13(b)
(c) ................................................................ Inapplicable 312(a), 5.01 and 5.02(a)
(b) ................................................................ 5.02(a) and (b)
(c) ................................................................ 5.02(c)
313(a) ................................................................ 5.04
(b)(1) ................................................................ Inapplicable
(2) ................................................................ 5.04
(c)(d) ................................................................ 5.04
314(a) ................................................................ 5.03
(b) ................................................................ Inapplicable
(c)(1)(2)................................................................ 14.05
(3) ................................................................ Inapplicable
(d) ................................................................ Inapplicable
(e) ................................................................ 14.05
(f) ................................................................ Inapplicable
315(a)(c)(d)................................................................ 7.01
(b) ................................................................ 6.07
(e) ................................................................ 6.08
316(a)(1) ................................................................ 6.06
(2) ................................................................ Inapplicable
(last sentence).................................................... 8.04
(b) ................................................................ 6.04
(c) ................................................................ 8.06
317(a) ................................................................ 6.02
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*/ The Cross Reference Sheet is not part of the Indenture.
(b) ................................................................. 4.04
318(a) ................................................................. 14.07
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TABLE OF CONTENTS
Page
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PARTIES.......................................................................................................... 1
RECITALS:
Purpose of Indenture.................................................................................... 1
Form of Security........................................................................................ 1
Form of Trustee's Certificate of Authentication......................................................... 1
Compliance with legal requirements...................................................................... 1
Purpose of and consideration for Indenture.............................................................. 1
ARTICLE ONE
DEFINITIONS.......................................................................................................1
Section 1.01. Certain Terms Defined...........................................................................1
Attributable Debt...............................................................................2
Authorized Newspaper............................................................................2
Board of Directors..............................................................................2
Business Day....................................................................................2
Certified Board Resolution......................................................................2
Company ......................................................................................3
Company Direction...............................................................................3
Consolidated Net Tangible Assets................................................................3
Corporate Trust Office..........................................................................3
Defaulted Interest..............................................................................3
Depositary......................................................................................3
ECU.............................................................................................4
Event of Default................................................................................4
Global Security.................................................................................4
Holder ......................................................................................4
Indenture ......................................................................................4
Interest Payment Date...........................................................................5
Officers' Certificate...........................................................................5
Opinion of Counsel..............................................................................5
Original Issue Discount Security................................................................5
Outstanding.....................................................................................5
Principal Property..............................................................................6
Record Date.....................................................................................6
Responsible Officer.............................................................................6
Restricted Subsidiary...........................................................................6
Sale and Lease-Back Transaction.................................................................7
Security or Securities..........................................................................7
Security Register and Security Registrar........................................................7
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Sinking Fund....................................................................................7
Stated Maturity.................................................................................7
Subsidiary......................................................................................7
Trust Indenture Act of 1939.....................................................................8
Trustee ......................................................................................8
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES...............................................................................8
Section 2.01. Amount Unlimited; Establishment of Series.....................................................8
Section 2.02. Form of Securities and Trustee's Certificate of Authentication...............................10
Section 2.03. Denomination, Authentication and Dating of Securities........................................10
Section 2.04. Execution of Securities......................................................................13
Section 2.05. Registration of Transfer and Exchange........................................................13
Section 2.06. Temporary Securities.........................................................................16
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities..............................................16
Section 2.08. Cancellation of Surrendered Securities.......................................................17
Section 2.09. Provisions of Indenture and Securities for the Sole Benefit of the Parties
and the Holders..............................................................................17
Section 2.10. Computation of Interest......................................................................17
ARTICLE THREE
REDEMPTION OF SECURITIES -- SINKING FUND.........................................................................18
Section 3.01. Applicability of Article.....................................................................18
Section 3.02. Notice of Redemption; Selection of Securities................................................18
Section 3.03. When Securities Called for Redemption Become Due and Payable.................................19
Section 3.04. Sinking Fund.................................................................................19
Section 3.05. Use of Acquired Securities to Satisfy Sinking Fund Obligations...............................20
Section 3.06. Effect of Failure to Deliver Officers' Certificate or Securities.............................21
Section 3.07. Manner of Redeeming Securities...............................................................21
Section 3.08. Sinking Fund Moneys to Be Held as Security During Continuance
of Event of Default; Exceptions..............................................................21
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY..............................................................................22
Section 4.01. Payments of Principal of (and Premium, if any) and Interest on Securities 22
Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer,
Exchange and Payment of Securities and for Service on the Company...........................22
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee.......................................23
Section 4.04. Duties of Paying Agents, etc.................................................................23
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Section 4.05. Limitation on Secured Debt...................................................................24
Section 4.06. Limitation on Sale and Lease-Back............................................................27
Section 4.07. Statement by Officers as to Default..........................................................28
Section 4.08. Further Instruments and Acts.................................................................28
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE........................................................28
Section 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders.........................................................................28
Section 5.02. Preservation of Information; Communications to Holders.......................................29
Section 5.03. Reports by Company...........................................................................30
Section 5.04. Reports by Trustee...........................................................................31
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT..........................................................32
Section 6.01. Events of Default............................................................................32
Section 6.02. Collection of Indebtedness by Trustee, etc...................................................35
Section 6.03. Application of Moneys Collected by Trustee...................................................36
Section 6.04. Limitation on Suits by Holders...............................................................37
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights
Not a Waiver of Default......................................................................38
Section 6.06. Rights of Holders of Majority in Principal Amount of Securities of
Any Series to Direct Trustee and to Waive Default............................................38
Section 6.07. Trustee to Give Notice of Default Known to It, But May Withhold Such Notice
in Certain Circumstances.....................................................................39
Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee.............................................................39
Section 6.09. Waiver of Stay or Extension Laws.............................................................39
ARTICLE SEVEN
CONCERNING THE TRUSTEE...........................................................................................40
Section 7.01. Certain Duties and Responsibilities..........................................................40
Section 7.02. Certain Rights of Trustee....................................................................41
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Securities................................42
Section 7.04. Trustee, Paying Agent or Security Registrar May Own Securities...............................42
Section 7.05. Moneys Received by Trustee to Be Held in Trust...............................................42
Section 7.06. Compensation and Reimbursement...............................................................43
Section 7.07. Right of Trustee to Rely on an Officers' Certificate Where No Other Evidence
Specifically Prescribed......................................................................43
Section 7.08. Disqualification of Trustee; Conflicting Interests...........................................44
Section 7.09. Requirements for Eligibility of Trustee......................................................44
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Section 7.10. Resignation and Removal of Trustee...........................................................44
Section 7.11. Acceptance by Successor to Trustee...........................................................45
Section 7.12. Successor to Trustee by Merger, Consolidation or Succession
to Business..................................................................................46
Section 7.13. Preferential Collection of Claims Against Company............................................47
Section 7.14. Appointment of Additional and Separate Trustees..............................................51
ARTICLE EIGHT
CONCERNING THE HOLDERS...........................................................................................53
Section 8.01. Evidence of Action by Holders................................................................53
Section 8.02. Proof of Execution of Instruments and of Holding of Securities...............................53
Section 8.03. Who May Be Deemed Owner of Securities........................................................54
Section 8.04. Securities Owned by Company or Controlled or
Controlling Companies Disregarded for Certain Purposes.......................................54
Section 8.05. Instruments Executed by Holders Bind Future Holders..........................................55
Section 8.06. Record Date for Determination of Holders Entitled to Vote....................................55
ARTICLE NINE
HOLDERS' MEETINGS AND CONSENTS...................................................................................55
Section 9.01. Purposes for Which Meeting May Be Called.....................................................55
Section 9.02. Manner of Calling Meetings...................................................................56
Section 9.03. Call of Meetings by Company or Holders.......................................................56
Section 9.04. Who May Attend and Vote at Meetings..........................................................56
Section 9.05. Regulations May Be Made by Trustee...........................................................57
Section 9.06. Manner of Voting at Meetings and Record to Be Kept...........................................57
Section 9.07. Written Consent in Lieu of Meetings..........................................................58
Section 9.08. No Delay of Rights by Meeting................................................................58
ARTICLE TEN
SUPPLEMENTAL INDENTURES..........................................................................................58
Section 10.01. Purposes for Which Supplemental Indentures May be Entered into Without
Consent of Holders...........................................................................58
Section 10.02. Modification of Indenture with Consent of Holders............................................60
Section 10.03. Effect of Supplemental Indentures............................................................61
Section 10.04. Securities May Bear Notation of Changes by Supplemental
Indentures...................................................................................61
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE.................................................................62
Section 11.01. Company May Consolidate, etc., on Certain Terms..............................................62
Section 11.02. Successor Corporation to be Substituted......................................................62
Section 11.03. Opinion of Counsel and Officers' Certificate to Be Given Trustee.............................63
ARTICLE TWELVE
DISCHARGE OF INDENTURE AND DEFEASANCE............................................................................63
Section 12.01. Termination of Company's Obligations.........................................................63
Section 12.02. Application of Trust Deposit.................................................................66
Section 12.03. Repayment to Company.........................................................................66
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES................................................................................67
Section 13.01. Incorporators, Stockholders, Officers, Directors and Employees
of Company Exempt from Individual Liability..................................................67
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS.........................................................................................67
Section 14.01. Successors and Assigns of Company Bound by Indenture.........................................67
Section 14.02. Acts of Board, Committee or Officer of Successor
Corporation Valid............................................................................67
Section 14.03. Required Notices or Demands..................................................................67
Section 14.04. Indenture and Securities to be Construed in Accordance with the Laws of the
State of New York............................................................................68
Section 14.05. Officers' Certificate and Opinion of Counsel to be Furnished upon Application
or Demand by the Company.....................................................................68
Section 14.06. Payments Due on Holidays.....................................................................69
Section 14.07. Provisions Required by Trust Indenture Act of 1939 to Control................................69
Section 14.08. Indenture May be Executed in Counterparts....................................................69
Section 14.09. Separability Clause..........................................................................69
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INDENTURE, dated as of the 1st day of December, 1998, between
SUNDSTRAND CORPORATION, a corporation incorporated under the laws of Delaware
(the "Company"), party of the first part, and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking institution (the "Trustee"), party of the second
part.
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured debentures, notes and other
evidences of indebtedness (hereinafter referred to as the "Securities"), to be
issued in one or more series in an unlimited amount as provided in this
Indenture.
WHEREAS, the text of the Securities is to be substantially in the form
attached hereto as Schedule A, with such specific terms, additions or omissions
as may be determined pursuant to an Officers' Certificate or a supplemental
indenture as contemplated in Section 2.01 hereof.
WHEREAS, the Trustee's certificate of authentication for the Securities
is to be substantially in the form attached hereto as Schedule B.
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement of the Company have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the premises and of the sum of One Dollar duly paid
by the Trustee to the Company at the execution and delivery of these presents,
the receipt whereof is hereby acknowledged, the Company and the Trustee covenant
and agree with each other, for the equal and proportionate benefit of all
Holders from time to time of the Securities, as follows:
ARTICLE ONE
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 and of any Officers' Certificate establishing the terms of a
particular series of Securities as herein provided shall have the respective
meanings specified in this Section 1.01. All other terms used in this Indenture
which are defined in the Trust Indenture Act of 1939, or which are by reference
therein defined in the Securities Act of 1933 (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 of 1939 and in such
Securities Act as in force as of the date of this Indenture.
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Attributable Debt:
The term "Attributable Debt" shall have the meaning specified in
Section 4.06.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day on each Business
Day in each calendar week and of general circulation in the Borough of
Manhattan, The City and State of New York, whether or not such newspaper is
published on Saturdays, Sundays and legal holidays. Whenever, under the
provisions of this Indenture, two or more publications of a notice or other
communication are required or permitted, such publications may be in the same or
different authorized newspapers. If, because of temporary or permanent
suspension of publication or general circulation of any newspaper or for any
other reason, it is impossible or impracticable to publish any notices required
by this Indenture in the manner herein provided, then such publication in lieu
thereof or such other notice as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.
Board of Directors:
The term "Board of Directors," when used with reference to the Company,
shall mean the Board of Directors of the Company or any executive committee of
such Board to which the powers of such Board have lawfully been delegated.
Business Day:
The term "Business Day" means, except as may otherwise be provided in
the form of Securities of any particular series, with respect to any Place of
Payment, any day, other than a Saturday or Sunday, that is not a legal holiday,
or a day on which banking institutions are authorized or required by law or
regulation to close in The City of New York or the City of Chicago or in that
Place of Payment, or with respect to Securities denominated in a Foreign
Currency, the capital city of the country of such Foreign Currency, or with
respect to Securities denominated in ECU, Brussels, Belgium.
Certified Board Resolution:
The term "Certified Board Resolution" shall mean one or more
resolutions certified by the Secretary or any Assistant Secretary of the Company
to have been duly adopted by the Board of Directors of the Company and to be in
full force and effect on the date of such certification, which are delivered to
the Trustee.
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Company:
The term "Company" shall mean SUNDSTRAND CORPORATION and, subject to
the provisions of Article Eleven, shall mean its successors and assigns from
time to time hereafter.
Company Direction:
The term "Company Direction" shall mean a written direction, order or
instruction, signed in the name of the Company by its Chairman of the Board or
its President or any Vice President and by its Treasurer or its Secretary or any
Assistant Treasurer or any Assistant Secretary and delivered to the Trustee.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" means, as of any particular
time, the total amount of assets (less applicable reserves) after deducting
therefrom (a) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed and excluding current maturities of long-term indebtedness) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense, and other like intangible assets, all as shown in the latest quarterly
consolidated balance sheet of the Company contained in the Company's then most
recent annual report to stockholders or quarterly report filed with the
Securities and Exchange Commission, as the case may be, except that assets shall
include an amount equal to the Attributable Debt in respect of any Sale and
Lease-Back Transaction not capitalized on such balance sheet.
Corporate Trust Office:
The term "Corporate Trust Office," or other similar term, shall mean
the principal office of the Trustee in the City of Chicago, at which at any
particular time its corporate trust business shall be principally administered
or, if no such office is maintained, such other office of the Trustee as shall
be designated. The Corporate Trust Office on the date hereof is located at Xxx
Xxxxx Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
Defaulted Interest:
The term "Defaulted Interest" shall have the meaning specified in
Section 2.03.
Depositary:
The term "Depositary" shall mean, with respect to the Securities of any
series issuable or issued in the form of one or more Global Securities, a
clearing agency registered under the Securities Exchange Act of 1934 and any
other applicable statute or regulation designated as Depositary by the Company
pursuant to Section 2.01 until a successor Depositary shall have become such
pursuant
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to Section 2.05, and thereafter "Depositary" shall mean or include each person
who is then a Depositary hereunder, and if at any time there is more than one
such person, "Depositary" as used with respect to the Securities of any such
series shall mean the Depositary with respect to the Global Securities of that
series.
ECU:
The term "ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
Event of Default:
The term "Event of Default" shall mean any event specified in Section
6.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
Global Security:
The term "Global Security" means a Security bearing the legend
prescribed in Section 2.03 and issued in definitive form without coupons,
evidencing all or a part of an issuance of Securities of any series, and issued
to the Depositary for such series in accordance with Section 2.03.
Holder:
The term "Holder," with respect to a registered Security, shall mean
any person in whose name such Security shall be registered on the Security
Register and, with respect to an unregistered Security, shall mean the bearer
thereof.
Indenture:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the terms of particular series of Securities
established as contemplated hereunder; provided, however, that if at any time
more than one Trustee is serving as such under this instrument, "Indenture"
shall mean, with respect to any one or more series of Securities for which any
such Trustee is serving, this Indenture as originally executed or as amended or
supplemented as herein provided, exclusive, however, of any provisions or terms
which relate solely to one or more series of Securities for which such Trustee
is not serving, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted with respect to a particular series
of Securities executed and delivered after such Trustee had become a Trustee
hereunder but with respect to which series such Trustee was not serving as
Trustee.
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Interest Payment Date:
The term "Interest Payment Date" shall mean the date on which an
installment of interest on any series of Securities shall become due and
payable, as therein or herein provided.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by any
two of the Chairman of the Board, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of
the Company, provided that one of the officers signing the Officers' Certificate
shall be the Chairman of the Board, or the President, or any Vice President
(which Vice President, if executing any Officers' Certificate delivered pursuant
to Section 2.01, shall be the chief financial officer of the Company, or, if no
such Vice President exists, a Vice President having similar responsibility as to
financial matters), which complies with Section 14.05 and is delivered to the
Trustee.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of, or counsel to, the Company. Each
such opinion shall include (except as otherwise provided in this Indenture) the
statements provided for in Section 14.05.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Stated Maturity thereof
pursuant to Section 6.01.
Outstanding:
The term "outstanding," when used with reference to Securities of any
series, subject to the provisions of Section 8.04, shall mean, as of any
particular time, all Securities of such series authenticated by the Trustee and
delivered under this Indenture, except:
(a) Securities of such series theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities of such series or portions thereof for the
payment or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in
trust by the Company (if the Company shall act as its own paying
agent); provided that, if such Securities or portions thereof are to be
redeemed, notice of such redemption shall have been given as in Article
Three provided or provision satisfactory to the Trustee shall have been
made for giving such notice;
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(c) Securities of such series in lieu of or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.07; and
(d) Securities of any series the indebtedness in respect to
which has been discharged in accordance with Section 12.01(a).
Principal Property:
The term "Principal Property" shall mean any manufacturing plant or
facility which is located within the United States of America and is owned by
the Company or any Restricted Subsidiary, except any such plant or facility
which the Board of Directors by resolution declares is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety and which, when taken together with all other plants
and facilities as to which such a declaration has been made, are so declared by
the Board of Directors to be not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries as an entirety.
Record Date:
The term "Record Date," as used with respect to any Interest Payment
Date, shall mean the close of business on the 15th day of the month preceding
the month in which an Interest Payment Date occurs, if such Interest Payment
Date is the 15th day of such month, in each case whether or not a Business Day,
or such other dates with respect to a particular series of Securities, as may be
specified in the instrument establishing such series, so long as such Record
Date is not less than 15 days prior to the applicable Interest Payment Date.
Responsible Officer:
The term "Responsible Officer," when used with respect to the Trustee,
shall mean any officer assigned by the Trustee to administer corporate trust
matters or any other Officer or Assistant Officer of the Trustee to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary (i)
substantially all the property of which is located within the United States of
America, (ii) which owns a Principal Property, and (iii) in which the Company's
investment, direct or indirect and whether in the form of equity, debt or
advances, as shown on the consolidating balance sheet used in the preparation of
the latest quarterly consolidated financial statements of the Company preceding
the date of determination, is in excess of 2% of the total consolidated assets
of the Company as shown on such quarterly consolidated financial statements;
provided, however, that the term "Restricted Subsidiary" shall not include any
Subsidiary which is principally engaged in leasing
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or in financing installment receivables or which is principally engaged in
financing the Company's operations outside the continental United States of
America.
SALE AND LEASE-BACK TRANSACTION:
The term "Sale and Lease-Back Transaction" shall have the meaning
specified in Section 4.06.
SECURITY OR SECURITIES:
The terms "Security" or "Securities" shall have the meaning stated in
the recital of this Indenture and shall mean any Security or such Securities, as
the case may be, authenticated and delivered pursuant to this Indenture;
PROVIDED, HOWEVER, that if at any time there is more than one Trustee serving
under this Indenture, "Securities" with respect to this Indenture, as to which
such Trustee is serving, shall have the meaning stated in the recital and shall
more particularly mean Securities authenticated and delivered pursuant to this
Indenture, exclusive of Securities of any series as to which such Trustee is not
serving as Trustee.
SECURITY REGISTER AND SECURITY REGISTRAR:
The terms "Security Register" and "Security Registrar," with respect to
any series of Securities, shall have the respective meanings specified in
Section 2.05.
SINKING FUND:
The term "Sinking Fund" shall mean any fund established by the Company
for redemption of the Securities of any series prior to Stated Maturity.
STATED MATURITY:
The term "Stated Maturity," when used with respect to any Security,
shall mean the date on which the last payment of principal of such Security is
due and payable in accordance with the terms thereof.
SUBSIDIARY:
The term "Subsidiary" shall mean any corporation which is consolidated
in the Company's accounts and any corporation of which at least a majority of
the outstanding stock having by the terms thereof ordinary voting power to elect
a majority of the board of directors of such corporation (irrespective of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
the Company, or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
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TRUST INDENTURE ACT OF 1939:
The term "Trust Indenture Act of 1939" (except as herein otherwise
expressly provided in Sections 7.14, 10.01 and 10.02) shall mean the Trust
Indenture Act of 1939.
TRUSTEE:
The term "Trustee" shall mean The First National Bank of Chicago until
a successor Trustee shall have become such pursuant to the applicable provisions
hereof, and thereafter "Trustee" shall mean or include all Trustees hereunder
and, subject to the provisions of Article Seven, shall also include its
successors and assigns and, unless the context otherwise requires, shall also
include any co-trustee or co-trustees or separate trustee or trustees appointed
pursuant to Section 7.14.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. AMOUNT UNLIMITED; ESTABLISHMENT OF SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series.
All Securities of any one series shall be substantially identical except as to
denomination and except as the Company in an Officers' Certificate delivered
pursuant to this Section 2.01 or in any supplemental indenture may otherwise
provide. The Securities may bear interest at such lawful rate or rates, from
such date or dates, shall mature at such time or times, may be redeemable at
such price or prices and upon such terms, including, without limitation, out of
proceeds from the sale of other Securities, or other indebtedness of the
Company, and may contain and/or be subject to such other terms and provisions as
shall be determined by the Company in accordance with the authority granted in
one or more resolutions of the Board of Directors reasonably acceptable to the
Trustee and set forth in an Officers' Certificate or a supplemental indenture,
which instrument shall establish with respect to each series of Securities:
(1) the designation of the Securities of such series, which
shall distinguish the Securities of one series from all other
Securities;
(2) the limit upon the aggregate principal amount at Stated
Maturity of the Securities of such series which may be authenticated
and delivered under this Indenture (not including Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant
to Sections 2.05, 2.06, 2.07, 3.02 or 10.04);
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(3) the rate at which the Securities of such series shall bear
interest, if any, or the formula by which interest shall accrue, the
dates from which interest shall accrue, and the Interest Payment Dates
on which such interest shall be payable;
(4) the Stated Maturity of the Securities of such series;
(5) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, the Securities of such
series may be redeemed, in whole or in part, at the option of the
Company;
(6) the obligation, if any, of the Company to redeem or
purchase Securities of such series pursuant to a sinking, purchase or
analogous fund and the period or periods within which, the price or
prices at which, and the terms and conditions upon which the Securities
of such series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(7) if other than the principal amount at Stated Maturity, the
portion of the principal amount at Stated Maturity of the Securities of
such series which shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 6.01;
(8) if other than denominations of $1,000 and any multiple
thereof, the denominations in which Securities of such series shall be
issuable;
(9) any changes in, omissions from or additions to the form of
Security to be used to evidence ownership of Securities of such series;
(10) any terms with respect to conversion of the Securities of
such series, warrants attached thereto or terms pursuant to which
warrants may exist;
(11) the place or places where the principal of (and premium,
if any) and interest on the Securities of such series shall be payable;
(12) any additional office or agencies maintained pursuant to
Section 4.02;
(13) whether the Securities of such series shall be issued as
registered Securities or as unregistered Securities, with or without
coupons; PROVIDED THAT no Securities will be issued as unregistered
Securities if such issuance would violate applicable law;
(14) whether Article Twelve hereof, including, without
limitation, Section 12.01(a) and (b) thereof, is applicable to the
Securities;
(15) whether any Securities are to be Original Issue Discount
Securities;
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(16) if other than United States dollars, the currency or
currencies, including composite currencies, in which payments of
interest or principal are payable with respect to the Securities of the
series;
(17) if the amount of payments of principal of or interest on
the Securities of any series may be determined with reference to the
differences in the price of or rate of exchange between any indexes,
currencies or commodities, the manner in which such amounts shall be
determined;
(18) whether any Securities of the series shall be issued as,
or exchanged for, in whole or in part, one or more Global Securities
and, in such case, (i) the terms upon which interests in such Global
Security or Securities shall be exchangeable by the Company or the
holder thereof for definitive Securities and (ii) the identity of the
Depositary for such Global Security or Securities; and
(19) any other terms of the Securities of such series (which
term shall not be inconsistent with the provisions of this Indenture).
Section 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Securities and the Trustee's certificate of authentication
to be borne by such Securities shall be substantially in the respective forms
thereof set forth in Schedules A (or a form established by or pursuant to a
Certified Board Resolution) and B to this Indenture with such specific terms,
additions or omissions as may be determined pursuant to an Officers' Certificate
or a supplemental indenture as contemplated in Section 2.01 hereof, in each case
with such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture (the provisions of which shall be appropriate to reflect the
terms of each series of Securities, including the currency or denomination,
which may be United States dollars, foreign currency or ECU) or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Securities may be listed, or to conform to usage.
Section 2.03. DENOMINATION, AUTHENTICATION AND DATING OF SECURITIES.
The Securities of each series may be issued as registered Securities or, if
provided by the terms of the instrument establishing such series of Securities,
as unregistered Securities, with or without coupons. The Securities of each
series shall be issuable in denominations of $1,000 and any integral multiple of
$1,000, unless otherwise provided by the terms of the instrument establishing
such series of Securities. Each Security shall be dated as of the date of its
authentication.
If the Company shall establish pursuant to Section 2.01 that the
Securities of a series may be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this Section 2.03, authenticate and deliver one or more Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the outstanding Securities to be represented by
such Global Security or
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Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions and (iv) shall bear a legend substantially to the following effect:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable for securities registered
in the name of a Person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security 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) may be registered except in such limited
circumstances."
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Direction for
authentication and delivery of such Securities, and the Trustee shall thereupon
authenticate and deliver such Securities in accordance with such Company
Direction. Prior to the issuance of Securities of any series, the Trustee shall
be entitled to receive and, subject to Section 7.01, shall be fully protected in
relying upon:
(1) a Certified Board Resolution pursuant to which the
issuance of the Securities of such series is authorized;
(2) an executed supplemental indenture, if any;
(3) an Officer's Certificate, if any, delivered in accordance
with Section 2.01 and an Officers' Certificate as to the absence of any
Event of Default or any event which with notice or lapse of time or
both could become an Event of Default; and
(4) an Opinion of Counsel of the Company which in substance
shall state that:
(i) the form and the terms of the Securities of
such series have been established in conformity with the
provisions of this Indenture;
(ii) the Securities of such series have been duly
authorized and, when executed and authenticated in accordance
with the provisions of this Indenture and subject to any other
reasonable and customary conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of this
Indenture;
(iii) the registration statement, if any, relating to
the Securities of such series and any amendments thereto has
become effective under the Securities Act of 1933 and, to the
best knowledge of such counsel, no stop order suspending the
effectiveness of such registration statement, as amended, has
been issued and no proceedings for that purpose have been
instituted or threatened;
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(iv) no consent, approval, authorization or order of
any court or governmental agency or body in the United States
is required for the issuance of the Securities of such series,
except such as have been obtained and such as may be required
under the blue sky laws of any jurisdiction in the United
States in connection with the purchase and distribution of the
Securities of such series;
(v) neither the issue nor sale of the Securities of
such series will conflict with, result in a breach of or
constitute a default under the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its Subsidiaries is a party or is bound, or
any order or regulation known to such counsel to be applicable
to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over the Company or any of its
Subsidiaries;
(vi) the authentication and delivery of the
Securities of such series by the Trustee in accordance with
the Company Direction so to do, and the Company's execution
and delivery of the Securities of such series, will not
violate the terms of this Indenture; and
(vii) such other opinions as shall be reasonably
requested by the Trustee.
PROVIDED, HOWEVER, that in the case of Securities of a series that are not to be
originally issued at one time, the Trustee shall authenticate and deliver or
make available for delivery such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee as may be
specified by or pursuant to a Company Order delivered to the Trustee prior to
the time of the first authentication of Securities of such series.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such series (A) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or (B) if the Trustee in
good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or responsible officers shall
determine that such action would expose the Trustee to personal liability to
Holders of outstanding Securities of any series.
So long as there is no existing default in the payment of interest on
registered Securities of any series, all such Securities authenticated by the
Trustee after the close of business on the Record Date for the payment of
interest on any Interest Payment Date relating thereto and prior to such
Interest Payment Date shall be dated the date of authentication but shall bear
interest from such Interest Payment Date; PROVIDED, HOWEVER, that if and to the
extent that the Company shall default in the interest due on such Interest
Payment Date, then any such Securities shall bear interest from the next
preceding Interest Payment Date relating to such Security with respect to which
interest has been paid or duly provided for on such Securities, from the date
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from which interest shall accrue as such date is set forth in the instrument
establishing the terms of such Securities.
The person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any registration of
transfer or exchange thereof subsequent to such Record Date and prior to such
Interest Payment Date, except if and to the extent the Company shall default in
the payment of the interest due on such Interest Payment Date, in which case
such defaulted interest (herein called "Defaulted Interest") shall be paid to
the persons in whose names outstanding Securities of such series are registered
at the close of business on a subsequent record date selected by the Trustee,
which shall not be less than five Business Days preceding the date of payment of
such Defaulted Interest, established for such purpose by notice given by mail or
on behalf of the Company to Holders of such Securities not less than 15 days
preceding such subsequent record date. Such notice shall be given to the persons
in whose names such outstanding Securities of such series are registered at the
close of business on the third Business Day preceding the date of the mailing of
such notice.
Section 2.04. EXECUTION OF SECURITIES. The Securities and coupons
appertaining thereto, if any, shall be signed on behalf of the Company by its
Chairman or its President or any Vice President and by its Secretary or
Assistant Secretary under its corporate seal. Such signatures 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 Securities and such coupons.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities and such
coupons.
Only such Securities as shall bear thereon a Trustee's certificate of
authentication substantially in the form provided for in Schedule B and signed
manually by the Trustee shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. The Trustee's certificate of
authentication on any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Securities or such coupons shall cease to be such officer before the Securities
or such coupons so signed shall have been authenticated by the Trustee and
delivered or disposed of by the Company, such Securities and such coupons
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Securities and such coupons had not ceased to be such
officer of the Company; and any Security or such coupons may be signed on behalf
of the Company by such persons as, at the actual date of the execution of such
Security or such coupons, shall be the proper officers of the Company, although
at the date of such Security or such coupons or of the execution of this
Indenture any such person was not such officer.
Section 2.05. REGISTRATION OF TRANSFER AND EXCHANGE. The Company shall
keep, at an office or agency maintained by the Company in accordance with the
provisions of Section 4.02,
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a register for each series of registered Securities (such register being herein
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall register Securities of such
series and shall register the transfer of such Securities as in this Article Two
provided. At all reasonable times the Security Register shall be open for
inspection by the Trustee. Upon due presentment for registration of transfer of
any such Security at such office or agency, or such other offices or agencies as
the Company may designate, the Company shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of authorized denominations, of the same series and of
like aggregate principal amount at Stated Maturity.
Unless and until otherwise determined by the Company by resolution of
its Board of Directors, the Security Register for the purpose of registration,
exchange or registration of transfer of registered Securities shall be kept at
the Corporate Trust Office and, for this purpose, the Trustee shall be
designated the "Security Registrar."
At the option of the Holder, Securities of any series may be exchanged
for Securities of the same series of like aggregate principal amount at Stated
Maturity and of other authorized denominations. Securities to be so exchanged
shall be surrendered at the offices or agencies 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 Security or Securities which
the Holder making the exchange shall be entitled to receive.
All Securities presented or surrendered for registration of transfer,
exchange, redemption or payment shall (if so required by the Company or the
Security Registrar) be duly endorsed or be accompanied by a written instrument
or instruments of transfer, in form satisfactory to the Company and the Trustee,
duly executed by the Holder or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer or Securities, 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.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Securities of any series for a period of 15 days next
preceding any selection of Securities of such series to be redeemed or (b) to
register the transfer of or exchange any Securities of such series selected,
called or being called for redemption.
Notwithstanding any other provision of this Section 2.05 to the
contrary, unless and until it is exchanged in whole or in part for Securities in
definitive registered form without coupons, a Global Security representing all
or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
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If at any time the Depositary for the Securities of a series
represented by one or more Global Securities notifies the Company that it is
unwilling or unable to continue as Depositary for the Securities of such series
or if at any time the Depositary for such Securities shall no longer be eligible
under Section 2.01, the Company shall appoint a successor Depositary with
respect to the Securities. If (i) the Depositary for Securities of a series
represented by one or more Global Securities is at any time unwilling or unable
to continue as Depositary or the Depositary for the Securities of such series
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and a successor Depositary is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility or (ii) the Company executes and delivers to the Trustee an order
to the effect that the Securities of any series issued in the form of one or
more Global Securities shall no longer be represented by such Global Security or
Securities, then the Company's election pursuant to Section 2.01 that the
Securities of such series be represented by one or more Global Securities shall
no longer be effective with respect to the Securities of such series, and the
Company will execute, and the Trustee, upon receipt of an order of the Company
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Securities in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 2.01 with respect to a
series of Securities represented by a Global Security, the Depositary for such
Global Security may surrender such Global Security in exchange in whole or in
part for Securities of the same series in definitive registered form without
coupons on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of an order
for the authentication and delivery of definitive Securities of such series
shall authenticate and deliver, without service charge,
(i) to the person specified by such Depositary a new Security
or Securities of the same series, of any authorized denominations as
requested by such person, in an aggregate principal amount equal to and
in exchange for such person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to clause (i)
above.
Upon the exchange of a Global Security for Securities in definitive
registered form without coupons, in authorized denominations, such Global
Security shall be canceled by the Trustee. Securities in definitive registered
form without coupons issued in exchange for a Global Security pursuant to this
Section 2.05 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall
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deliver such Securities to or as directed by the persons in whose names such
Securities are so registered.
Section 2.06. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute and deliver and the Trustee, upon
Company Direction and the satisfaction of the conditions set forth in Section
2.03 hereof, shall authenticate and deliver temporary Securities (printed,
lithographed or typewritten) of any authorized denomination and substantially in
the form of the definitive Securities, but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Temporary Securities may be issued without a recital
of the specific redemption prices, if any, applicable to such Securities and may
contain such reference to any provisions of this Indenture as may be
appropriate. Every temporary 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 Securities. The Company
shall execute and furnish definitive Securities as soon as practicable, and
thereupon any or all temporary Securities may be surrendered in exchange
therefor at the Corporate Trust Office, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities a like aggregate principal
amount at Stated Maturity of definitive Securities of the same series. Until so
exchanged, the temporary Securities shall be entitled to the same benefits under
this Indenture as definitive Securities authenticated and delivered hereunder.
Section 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. In case
any temporary or definitive Security and, in the case of a definitive Security,
coupons appertaining thereto, if any, shall become mutilated or be destroyed,
lost or stolen, the Company in its discretion may execute, and upon Company
Direction the Trustee shall authenticate and deliver, a new Security or such
coupons of the same series bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated Security or such coupons, or in
lieu of and in substitution for the Security or such coupons so destroyed, lost
or stolen. In every case, the applicant for a substituted Security or such
coupons shall furnish to the Company, and to the Security Registrar and any
paying agent, such security or indemnity as may be required by them to save each
of them harmless from all risk, however remote, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company, and
to the Trustee and any paying agent, evidence to their satisfaction of the
destruction, loss or theft of such Security or such coupons and of the ownership
thereof. The Trustee may authenticate any such substituted Security and deliver
the same upon Company Direction. Upon the issuance of any substituted Security
or such coupons, 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 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 Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Security) if the
applicant for such payment shall furnish the Company and any paying agent with
such security or indemnity as either may require to save it harmless from all
risk, however remote, and, in case of
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destruction, loss or theft, evidence to the satisfaction of the Company of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series or coupon issued pursuant to
the provisions of this Section 2.07 by virtue of the fact that any Security or
coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or coupon 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 Securities
of such series or coupons duly issued and delivered hereunder. All Securities
and coupons 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 Securities and coupons and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.08. CANCELLATION OF SURRENDERED SECURITIES. All Securities
surrendered for payment, redemption (whether through the operation of a Sinking
Fund or otherwise), registration of transfer or exchange, and all coupons
surrendered for payment, shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee for cancellation by it or, if surrendered
to the Trustee, shall be cancelled by it, and all Securities delivered to the
Trustee in discharge or satisfaction in whole or in part of any Sinking Fund
payment (referred to in Section 3.04) shall be cancelled by the Trustee, and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee will destroy cancelled
Securities and coupons and deliver a certificate of destruction to the Company
unless requested otherwise. If the Company shall acquire any of the Securities
or coupons, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness or rights represented by such Securities or
coupons unless and until the same are delivered or surrendered to the Trustee
for cancellation.
Section 2.09. PROVISIONS OF INDENTURE AND SECURITIES FOR THE SOLE
BENEFIT OF THE PARTIES AND THE HOLDERS. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the Holders of
the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained, all its covenants, conditions and provisions being for the sole
benefit of the parties hereto and the Holders.
Section 2.10. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
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ARTICLE THREE
REDEMPTION OF SECURITIES -- SINKING FUND
Section 3.01. APPLICABILITY OF ARTICLE. The Company may become
obligated, or reserve the right, to redeem and pay, prior to Stated Maturity,
all or any part of the Securities of any series, either by optional redemption,
Sinking Fund or otherwise, by provision therefor in the instrument establishing
such series of Securities pursuant to Section 2.01 or in the Securities of such
series. Redemption of any series shall be made in accordance with the terms of
such Securities and to the extent that this Article does not conflict with such
terms, in accordance with this Article.
Section 3.02. NOTICE OF REDEMPTION; SELECTION OF SECURITIES. In case
the Company shall exercise the right or be obligated to redeem Securities as
provided for in the first sentence of Section 3.01, it shall fix a date for
redemption (unless, by the terms of the instrument establishing such series of
Securities or the terms of such Securities, such date is fixed), and it or, at
its request, the Trustee, in the name of and at the expense of the Company,
shall give notice of such redemption to the Holders of the Securities to be
redeemed as a whole or in part, with respect to registered Securities, by
mailing a notice of such redemption not less than 20 nor more than 60 days prior
to the date fixed for redemption to their last addresses as they shall appear
upon the Security Register and, with respect to unregistered Securities, by
publishing in an authorized newspaper notice of such redemption on two separate
days, each of which is not less than 20 nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed or published, as the case may
be, in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder actually receives such notice. In any
case, failure duly to give notice by mail, or any defect in the notice, to the
Holder of any registered Security of any series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impractical to mail notice of any event to Holders of
registered Securities when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities are to be redeemed, and
shall state that payment of the redemption price of the Securities or portions
thereof to be redeemed, together with interest accrued to the date fixed for
redemption, will be made at the offices or agencies to be maintained by the
Company in accordance with the provisions of Section 4.02 upon presentation and
surrender of such Securities and that, on and after such date, interest thereon
or on the portions thereof to be redeemed will cease to accrue. If less than all
the Securities of any series are to be redeemed, the notice to the Holders of
Securities to be redeemed shall specify the
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Securities to be redeemed. In case any Security is to be redeemed in part only,
such notice shall state the portion of the principal amount thereof to be
redeemed and shall state that, on and after the redemption date, upon surrender
of such Security, a new Security or Securities of the same series in authorized
denominations and in a principal amount at Stated Maturity equal to the
unredeemed portion thereof will be issued.
If less than all the Securities of any series are to be redeemed, the
Company shall give the Trustee written notice, at least 15 days prior to the
date on which notice is to be given to the Holders of such Securities (or such
shorter period acceptable to the Trustee), as to the aggregate principal amount
at Stated Maturity of Securities of such series to be redeemed, which shall be
an integral multiple of $1,000, and thereupon the Trustee shall select, in such
manner as it shall deem appropriate and fair, the Securities of such series to
be redeemed in part and shall thereafter promptly notify the Company in writing
of the numbers of the Securities so to be redeemed and, in the case of
Securities to be redeemed in part only, the principal amount at Stated Maturity
so to be redeemed.
Section 3.03. WHEN SECURITIES CALLED FOR REDEMPTION BECOME DUE AND
PAYABLE. If the Company has fixed a date for redemption pursuant to Section
3.02, the Securities or portions of Securities specified in the notice provided
in Section 3.02 shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after such date fixed for
redemption (unless the Company shall default in the payment of such Securities
at the redemption price, together with interest accrued to the date fixed for
redemption) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment
specified in such notice, such Securities shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued to
the dated fixed for redemption; PROVIDED, HOWEVER, that installments of interest
becoming due on the date fixed for redemption on Securities which are in
registered form shall be payable to the Holders of such Securities or of one or
more previous such Securities evidencing all or a portion of the same debt as
that evidenced by such particular Securities, registered as such on the relevant
Record Dates according to their terms and the provisions of Section 2.03.
Upon presentation of any Security which is redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, at the expense of the Company, a new Security or
Securities of the same series in authorized denominations and in a principal
amount at Stated Maturity equal to the unredeemed portion of the Security so
presented.
Section 3.04. SINKING FUND. In the event that the instrument
establishing the terms of a particular series shall provide for a Sinking Fund,
the Company covenants that as and for a Sinking Fund for the redemption of
Securities of such series, so long as any of the Securities of such series are
outstanding:
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(a) It will pay to the Trustee or to a paying agent (or, if
the Company is acting as its own paying agent, segregate and hold in
trust as provided in Section 4.04), on or before each date set forth as
a Sinking Fund payment date (each such date is herein called a "Sinking
Fund payment date") in the instrument establishing such series, a sum
in cash sufficient to retire on each such date, at the Sinking Fund
redemption price provided for in such instrument and upon the
conditions, if any, applicable thereto as specified in such instrument,
the principal amount of such Securities as specified in such
instrument, together with interest accrued to the Sinking Fund payment
date. Each sum payable as provided in this paragraph (a) is herein
called a "mandatory Sinking Fund payment."
(b) If the instrument establishing any series of Securities so
provides, and upon the terms provided herein, the Company may elect to
pay to the Trustee or to a paying agent (or, if the Company is acting
as its own paying agent, segregate and hold in trust as provided in
Section 4.04), on or before any Sinking Fund payment date with respect
to a particular series of Securities, an additional sum in cash
sufficient to retire on such Sinking Fund payment date, at the Sinking
Fund redemption price, up to any additional principal amount of
Securities, together with interest accrued to the Sinking Fund payment
date set forth in such instrument. Any sum payable as provided in this
paragraph (b) is herein called an "optional Sinking Fund payment." Any
such election by the Company shall be evidenced by an Officers'
Certificate, delivered to the Trustee not later than 60 days (or such
shorter period acceptable to the Trustee) preceding such Sinking Fund
payment date, which certificate shall set forth the amount of the
optional Sinking Fund payment which the Company then elects to pay. The
Company's election, so evidenced, shall be irrevocable and the Company
shall, upon delivery of such certificate to the Trustee, become bound
to pay or segregate and hold in trust as aforesaid on or before such
Sinking Fund payment date the amount specified in such certificate.
Unless otherwise provided in the instrument establishing such series,
any such right to make an optional Sinking Fund payment shall be
noncumulative and shall in no event relieve the Company of its
obligation set forth in paragraph (a) of this Section 3.04.
All moneys paid or segregated and held in trust pursuant to this
Section 3.04 shall be applied on the Sinking Fund payment date in respect of
which such payment or segregation was made to the redemption of Securities as
provided in this Article Three.
Section 3.05. USE OF ACQUIRED SECURITIES TO SATISFY SINKING FUND
OBLIGATIONS. In lieu of making all or any Sinking Fund payment in cash as may be
required by Section 3.04(a), the Company may, not later than 60 days (or such
shorter period acceptable to the Trustee) preceding any applicable Sinking Fund
payment date relating to a particular series of Securities, deliver to the
Trustee for cancellation Securities of such series theretofore acquired by the
Company (otherwise than through the use of Sinking Fund moneys pursuant to
Section 3.07) and not theretofore made the basis for the reduction of any
Sinking Fund payment with respect to such series, accompanied by an Officers'
Certificate stating the Company's election to use such Securities to reduce the
amount of such Sinking Fund payment with respect to such series
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(specifying the amount of the reduction of each such payment) and certifying
that such Securities have not theretofore been acquired pursuant to Section 3.07
or made the basis for a reduction of any Sinking Fund payment with respect to
such series. Securities so delivered shall be credited against the Sinking Fund
payment due on such Sinking Fund payment date at the Sinking Fund redemption
price thereof.
Section 3.06. EFFECT OF FAILURE TO DELIVER OFFICERS' CERTIFICATE OR
SECURITIES. In case of a failure of the Company, at or before the time provided
above, to deliver any Officers' Certificate as may be required by Section 3.05,
together with any Securities of the particular series required by Section 3.05,
the Company shall not be permitted to make any such reduction of the amount of
the Sinking Fund payment with respect to such series payable on such Sinking
Fund payment date.
Section 3.07. MANNER OF REDEEMING SECURITIES. The Securities of any
series to be redeemed from time to time through the operation of any Sinking
Fund relating to such series, as in Section 3.04 provided, shall be selected by
the Trustee for redemption in the manner provided in Section 3.02, and notice
thereof shall be given by the Trustee to the Company, and the Company hereby
irrevocably authorizes the Trustee, in the name of and at the expense of the
Company, to give notice on behalf of the Company of the redemption of such
Securities, all in the manner and with the effect in this Article Three
specified, except that, in addition to the matters required to be included in
such notice by Section 3.02, such notice shall also state that the Securities
therein designated for redemption are to be redeemed through operation of such
Sinking Fund. Such Securities shall be so redeemed and paid in accordance with
such notice in the manner and with the effect provided in Sections 3.02 and
3.03.
Notwithstanding the foregoing, if at any time the amount of cash to be
paid into any Sinking Fund with respect to a particular series of Securities on
any next succeeding Sinking Fund payment date for such series, together with any
unused balance of any preceding Sinking Fund payment or payments with respect to
such series which shall not, in any case, include funds held by the Trustee for
Securities of such series which previously have been called for redemption,
shall not exceed in the aggregate $100,000, the Trustee, unless requested by the
Company, shall not select Securities for or give notice of the redemption of
Securities through the operation of the Sinking Fund with respect to such series
on the next succeeding Sinking Fund payment date. Such unused balance of moneys
deposited in the Sinking Fund with respect to a particular series of Securities
shall be added to the next Sinking Fund payment for such series to be made in
cash or, at the request of the Company, shall be applied at any time or from
time to time to the purchase of Securities of such series, by public or private
purchase, in the open market or otherwise.
Section 3.08. SINKING FUND MONEYS TO BE HELD AS SECURITY DURING
CONTINUANCE OF EVENT OF DEFAULT; EXCEPTIONS. Unless all Securities of any series
then outstanding are to be redeemed, neither the Trustee nor any paying agent
shall redeem any Securities of such series with Sinking Fund moneys if such
person shall at the time have knowledge of the continuance of any Event of
Default with respect to such series, except that where the mailing or
publication of notice of
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redemption of any such Securities shall theretofore have been made, the Trustee
or any paying agent, if sufficient funds shall have been deposited with it for
such purpose, shall redeem such Securities. However, the Company itself shall
not redeem any such Securities with Sinking Fund moneys during the continuance
of any Event of Default with respect to such series. The Trustee shall not mail
or publish any notice of redemption if it shall at the time have knowledge of
the continuance of any Event of Default with respect to such series. Except as
aforesaid, any moneys in the Sinking Fund with respect to such series at such
time and any moneys thereafter paid into the Sinking Fund shall during such
continuance be held as security for the payment of all Securities of that
series; PROVIDED, HOWEVER, that in case such Event of Default with respect to
such series shall have been waived as permitted by this Indenture or otherwise
cured, such moneys shall thereafter be held and applied in accordance with the
provisions of this Article Three.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. PAYMENTS OF PRINCIPAL OF (AND PREMIUM, IF ANY) AND
INTEREST ON SECURITIES. The Company will duly and punctually pay or cause to be
paid the principal of (and premium, if any) and interest, if any, on Securities
of each series at the place, at the time or times and in the manner provided in
the instrument establishing such series and in the Securities of such series.
The interest on the Securities, if any, shall be payable (subject to the
provisions of Section 2.03) only to or upon the written order of the Holders
thereof or, in the case of unregistered Securities with coupons, the Holders of
coupons relating thereto. Any installment of interest on registered Securities
of any series may, at the Company's option be paid by mailing checks for such
interest payable to or upon the written order of the person entitled thereto
pursuant to Section 2.03 to the address of such person as it appears on the
Security Register.
In the case of Global Securities, each installment of interest on the
Securities of any series shall be made by wire transfer of immediately available
funds if appropriate wire transfer instructions in writing have been received by
the Trustee not less than 15 days prior to the Interest Payment Date.
Section 4.02. MAINTENANCE OF OFFICES OR AGENCIES FOR REGISTRATION OF
TRANSFER, EXCHANGE AND PAYMENT OF SECURITIES AND FOR SERVICE ON THE COMPANY. As
long as any of the Securities of any series remain outstanding, the Company will
maintain one or more offices or agencies in the City of Chicago, and at such
other locations as the Company may from time to time designate for any series of
Securities, where such Securities may be presented for registration of transfer
and exchange. The Corporate Trust Office shall be such office in the City of
Chicago. The Trustee shall be the agent of the Company in the City of Chicago
for all of the foregoing purposes, unless the Company shall designate and
maintain some other office and agency for
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such purposes and give the Trustee written notice of the location thereof. The
Company will give to the Trustee notice of the location of each such office or
agency and of any change of location thereof.
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 for any one or more series of Securities, will appoint, in the manner
provided in Section 7.10, a Trustee so that there shall at all times be a
Trustee with respect to each series of Securities hereunder.
Section 4.04. DUTIES OF PAYING AGENTS, ETC. (a) The Company shall cause
each paying agent, if any, other than the Trustee, for any series of Securities,
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, that:
(1) 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
Securities of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such series)
in trust for the benefit of the Holders of the Securities of such
series;
(2) it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of (or premium, if any) or interest
on the Securities of such series when the same shall be due and
payable;
(3) it will at any time during the continuance of an Event of
Default with respect to such series of Securities, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held
by it as such agent; and
(4) it will give the Trustee prompt written notice of any
change of address of any Holder of the Securities.
Whenever the Company shall have one or more paying agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on Securities of such series, deposit with
such paying agent or agents a sum sufficient to pay such principal (and premium,
if any) or interest on such Securities so becoming due.
(b) If the Company shall act as its own paying agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest, including dates fixed for redemption (including
Sinking Fund payment dates), on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series a sum sufficient to pay such principal (and premium, if any) or
interest on such Securities 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 the Securities of such
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series to make any payment of the principal of (or premium, if any) or interest
on the Securities of such series 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 hereunder, as
required by this Section 4.04, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such paying
agent.
(d) 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 12.03.
Section 4.05. LIMITATION ON SECURED DEBT. (a) The Company will not, nor
will it permit any Restricted Subsidiary to, incur, issue, assume or guarantee
any indebtedness for money borrowed or any other indebtedness evidenced by
notes, bonds, debentures or other similar evidence of indebtedness for money
borrowed (hereinafter in this Article Four called "Debt") other than guarantees
arising in connection with the sale, discount, guarantee or pledge of notes,
chattel mortgages, leases, accounts receivable, trade acceptances and other
paper arising, in the ordinary course of business, out of installment or
conditional sales to or by, or transactions involving title retention with,
distributors, dealers or other customers, of merchandise, equipment or services,
secured by a mortgage, security interest, pledge, lien or other encumbrance
(mortgages, security interests, pledges, liens and other encumbrances being
hereinafter in this Article Four called "mortgage" or "mortgages") upon any
Principal Property of the Company or any Restricted Subsidiary or upon any
shares of stock or Debt of any Restricted Subsidiary (whether such Principal
Property, shares of stock or Debt are now owned or hereafter acquired), except
with respect to each series of Securities any Debt so secured on the date of
issuance of such series, without in any such case effectively providing
concurrently with the issuance, assumption or guaranty of any such Debt that the
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Restricted Subsidiary
ranking equally with the Securities and then existing or thereafter created)
shall be secured equally and ratably with (or, at the option of the Company,
prior to) such secured Debt, so long as such Debt shall be so secured; PROVIDED,
HOWEVER, that the foregoing restrictions shall not apply to, and there shall be
excluded from secured Debt in any computation under this Section, Debt secured
by
(i) mortgages on property, shares of stock or Debt
(hereinafter in this Article Four called "property") of any
corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(ii) mortgages on property existing at the time of
acquisition of the affected property by the Company or a
Restricted Subsidiary, or mortgages to secure the payment of
all or any part of the purchase price of such property upon
the acquisition of such property by the Company or a
Restricted Subsidiary or to
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secure any Debt incurred by the Company or a Restricted
Subsidiary prior to, at the time of, or within 180 days after
the later of the acquisition, the completion of construction
(including any improvements on an existing property) or the
commencement of commercial operation of such property, which
Debt is incurred for the purpose of financing all or any part
of the purchase price thereof or construction or improvements
thereon; PROVIDED, HOWEVER, that in the case of any such
acquisition, construction or improvement the mortgage shall
not apply to any property theretofore owned by the Company or
a Restricted Subsidiary, other than, in the case of any such
construction or improvement, any real property on which the
property so constructed or the improvement is located which,
in the opinion of the Board of Directors, was, prior to such
construction or improvement, substantially unimproved for the
use intended by the Company or such Restricted Subsidiary;
(iii) mortgages on property of a Restricted
Subsidiary securing Debt owing to the Company or to another
Restricted Subsidiary;
(iv) mortgages on property of a corporation
existing at the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or at
the time of a sale, lease or other disposition of the
properties of a corporation or firm as an entirety or
substantially as an entirety to the Company or a Restricted
Subsidiary; PROVIDED, HOWEVER, that any such mortgages do not
attach to or affect property theretofore owned by the Company
or such Restricted Subsidiary;
(v) mortgages on property owned or leased by the
Company or a Restricted Subsidiary in favor of the United
States of America or any State thereof, or any department,
agency or instrumentality or political subdivision of the
United States of America or any State thereof, or in favor of
any other country or any political subdivision thereof, or in
favor of holders of securities issued by any such entity,
pursuant to any contract or statute (including, without
limitation, mortgages to secure Debt of the pollution control
or industrial revenue bond type), or to secure any
indebtedness incurred for the purpose of financing all or any
part of the purchase price or the cost of construction of the
property subject to such mortgages;
(vi) mortgages existing at the date of this
Indenture;
(vii) landlords' liens on fixtures located on
premises leased by the Company or a Restricted Subsidiary in
the ordinary course of business;
(viii) mortgages on property of the Company or a
Restricted Subsidiary to secure partial, progress, advance or
other payments or any Debt incurred for the purpose of
financing the cost of construction, development, or
substantial
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repair, alteration or improvement of the property subject to
such mortgages if the commitment for the financing is obtained
not later than one year after the later of the completion of
or the placing into operation (exclusive of test and start-up
periods) of such constructed, developed, repaired, altered or
improved property;
(ix) mortgages arising in connection with contracts
and subcontracts with or made at the request of the United
States of America, or any state thereof, or any department,
agency or instrumentality of the United States or any state
thereof;
(x) mechanics', materialmen's, carriers' or other
like liens arising in the ordinary course of business
(including construction of facilities) in respect of
obligations which are not due or which are being contested in
good faith;
(xi) any mortgage arising by reason of deposits
with, or the giving of any form of security to, any
governmental agency or any body created or approved by law or
governmental regulations, which is required by law or
governmental regulation as a condition to the transaction of
any business, or the exercise of any privilege, franchise or
license;
(xii) mortgages for taxes, assessments or
governmental charges or levies not yet delinquent or mortgages
for taxes, assessments or governmental charges or levies
already delinquent but the validity of which is being
contested in good faith;
(xiii) mortgages (including judgment liens) arising
in connection with legal proceedings so long as such
proceedings are being contested in good faith and, in the case
of judgment liens, execution thereon is stayed; or
(xiv) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or
in part of any mortgage referred to in the foregoing clauses
(i) to (xiii), inclusive, PROVIDED, HOWEVER, that the
principal amount of Debt secured or securable thereby shall
not exceed the principal amount of Debt so secured or
securable at the time of such extension, renewal or
replacement mortgage, and that such extension, renewal or
replacement mortgage shall be limited to all or a part of the
property which secured the mortgage so extended, renewed or
replaced (plus improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section
4.05, the Company and any one or more Restricted Subsidiaries may
issue, assume or guarantee Debt secured by mortgage which would
otherwise be subject to the foregoing restrictions in an aggregate
amount which, together with all other Debt of the Company and its
Restricted Subsidiaries which (if originally issued, assumed or
guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including Debt permitted to
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be secured under clauses (i) through (xiv) above), does not at the time
exceed 10% of Consolidated Net Tangible Assets, as shown on the latest
quarterly consolidated financial statements of the Company preceding
the date of determination.
Section 4.06. LIMITATION ON SALE AND LEASE-BACK. The Company will not,
nor will it permit any Restricted Subsidiary to, enter into any arrangement with
any bank, insurance company or other lender or investor (not including the
Company or any Restricted Subsidiary) or to which any such lender or investor is
a party, providing for the leasing by the Company or any Restricted Subsidiary
for a period, including renewals, in excess of three years, of any Principal
Property of the Company or any Restricted Subsidiary (whether such Principal
Property is now owned or hereafter acquired) (except for temporary leases for a
term of not more than three years and except for leases between the Company and
a Restricted Subsidiary or between Restricted Subsidiaries), which Principal
Property has been or is to be sold or transferred more than one year after the
acquisition thereof or after the completion of construction and commencement of
full operation thereof, by the Company or such Restricted Subsidiary to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal Property
(herein referred to as a "Sale and Lease-Back Transaction"), unless either (a)
the Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions of Section 4.05, to issue, assume or guarantee Debt secured by a
mortgage upon such Principal Property at least equal in amount to the
Attributable Debt in respect of such arrangement without equally and ratably
securing the Securities, PROVIDED, HOWEVER, that from and after the date on
which such arrangement becomes effective the Attributable Debt in respect of
such arrangement shall be deemed for all purposes under Sections 4.05 and 4.06
to be Debt subject to the provisions of Section 4.05 or (b) the Company within
270 days after the sale or transfer shall have been made by the Company or by
any such Restricted Subsidiary, applies an amount equal to the greater of (i)
the net proceeds of the sale of the Principal Property sold and leased back
pursuant to such arrangement and (ii) the fair market value of the Principal
Property so sold and leased back at the time of entering into such arrangement
(as determined by any two of the following: the chairman of the Board of
Directors, its president, any vice president, its treasurer and its controller)
to (x) the purchase of property, facilities or equipment (other than the
property, facilities or equipment involved in such sale) having a value at least
equal to the net proceeds of such sale or (y) the retirement of Debt of the
Company (and any retirement of Securities of any series pursuant to this
provision shall not be deemed to constitute a refunding operation or anticipated
refunding operation for the purposes of any provision restricting any refunding
operations with moneys borrowed having an interest cost to the Company in excess
of a certain amount with respect to the Securities of such series); provided,
that the amount to be applied to the retirement of Debt of the Company shall be
reduced by (i) the principal amount of any Securities of any series (or, if the
Securities of any series are Original Issue Discount Securities, such portion of
the principal amount as may be due and payable with respect to such series
pursuant to a declaration in accordance with Section 6.01) delivered within 270
days after such sale to the Trustee for retirement and cancellation, and (ii)
the principal amount of Debt, other than the Securities of any series,
voluntarily retired by the Company within 270 days after such sale.
Notwithstanding the
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foregoing, no retirement referred to in this clause (b) may be effected by
payment at maturity or pursuant to any mandatory sinking fund payment or any
mandatory prepayment provision.
The term "Attributable Debt" shall mean the present value (discounted
at the actual percentage rate inherent in such arrangement as determined in good
faith by the Company, compounded semiannually) of the obligation of a lessee for
rental payments during the remaining term of any lease (including any period for
which such lease has been extended). Such rental payments shall not include
amounts payable by the lessee for maintenance and repairs, insurance, taxes,
assessments and similar charges and for contingent rents (such as those based on
sales). In case of any lease which is terminable by the lessee upon the payment
of a penalty, such rental payments shall also include such penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated. Any determination of any actual
percentage rate inherent in any such arrangement made in good faith by the
Company shall be binding and conclusive, and the Trustee shall have no duty with
respect to any determination made under this Section 4.06.
Section 4.07. 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 of its fiscal years ending after the date hereof during which any
Securities are outstanding, an Officers' Certificate stating that neither of the
signers thereof has any knowledge, after due investigation, of the existence of
any Event of Default, or any event which could with the passage of time or
notice mature into an Event of Default, by the Company under this Indenture or
stating that they have knowledge of the existence of such an event of which the
signers have knowledge and the nature thereof.
Section 4.08. FURTHER INSTRUMENTS AND ACTS. The Company will, upon
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
ARTICLE FIVE
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. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee with respect to each series of Securities:
(a) semiannually, not more than 15 days after each Record Date
for the payment of interest, and not less than 15 days before each
interest payment, if any, with respect to such series of Securities
(or, in the case of any series of Securities not having semiannual
Record Dates, semiannually on the dates determined pursuant to Section
2.01 for such series), a list, in such form as the Trustee may
reasonably require of the names and addresses of the Holders of such
series as of such Record Date; and
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(b) at such other time as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the date such list is furnished;
except that, so long as the Trustee is the Security Registrar with respect to
such series of Securities, no such list need be furnished under this Section
5.01.
Section 5.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders (1)
contained in the most recent list furnished to it as provided in Section 5.01
and (2) received by it in the capacity of paying agent or Security Registrar (if
so acting) hereunder.
The Trustee may destroy any list furnished to it with respect to
Securities of any series as provided in Section 5.01 upon receipt of a new list
with respect to such series so furnished.
(b) In case three or more Holders of registered Securities of any
series (hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each applicant has
owned a Security of such series for a period of at least six months preceding
the date of such application and such application states that the applicants
desire to communicate with other Holders of Securities of such series with
respect to their rights under this Indenture or under the Securities of such
series, and is accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee shall, within five
business days after the receipt of such application, at its election, either
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02, or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series whose names and addresses appear
in the information preserved at the time by the Trustee, in accordance
with the provisions of subsection (a) of this Section 5.02, and as to
the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each such Holder whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02, a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of such
Holders or would be in violation
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of applicable law. Such written statement shall specify the basis of such
opinion. If such Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order sustaining one
or more of such objections, such Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(c) Each and every Holder, by receiving and holding any Security,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any Security Registrar nor any paying agent shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with the provisions of subsection (b) of this
Section 5.02, regardless of the source from which such information was derived,
and that Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (b).
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 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
such Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then to file with the
Trustee and such Commission, in accordance with rules and regulations prescribed
from time to time by such Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations.
(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 such Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in its Indenture and the Securities as may
be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 5.04, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 5.03 as may be
required by rules and regulations prescribed from time to time by the Securities
and Exchange Commission.
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(d) The Company covenants to furnish to the Trustee, not less often
than annually, a brief certificate from the principal executive officer,
principal financial officer, principal treasurer or principal accounting officer
of the Company as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this paragraph,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
Section 5.04. REPORTS BY TRUSTEE. (a) On or before May 15, 1999, and on
or before May 15th in every year thereafter, so long as any Securities of any
series, are outstanding hereunder, the Trustee shall transmit to the Holders of
Securities of each such series as hereinafter in this Section 5.04 provided, and
to the Company a brief report dated as of the preceding March 15th, with respect
to any of the following events which may have occurred within the previous 12
months (but if no such event has occurred within such period no report need be
transmitted):
(1) its eligibility under Section 7.09 and its qualifications
under Section 7.08, or in lieu thereof, if to the best of its knowledge
it has continued to be eligible and qualified under such Sections, a
written statement to such effect;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of such series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount at Stated Maturity of
Securities of such series outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities of such series) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based upon
a creditor relationship arising in any manner described in paragraph
(2), (3), (4) or (6) of subsection (b) of Section 7.13;
(5) the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(6) any additional issue of Securities of such series which
the Trustee has not previously reported; and
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(7) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects any of the Securities of such
series, except action in respect of a default, notice of which has been
or is to be withheld by it in accordance with the provisions of Section
6.07.
(b) The Trustee shall transmit to Holders of Securities of each series,
as hereinafter provided, and to the Company a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section 5.04 (or if no such report has yet been so
transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of such series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate ten percent or
less of the principal amount at Stated Maturity of Securities of such series
outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) Reports to Holders pursuant to this Section 5.04 shall be
transmitted by mail:
(1) to all Holders of Registered Securities of each series
entitled thereto, as the names and addresses of such Holders appear
upon the Security Register with respect to such series;
(2) such Holders as have, within two years preceding such
transmission, filed their names and addresses with the Trustee for that
purpose; and
(3) except in the case of reports pursuant to subsection (b)
of this Section 5.04, to each Holder whose name and address is
preserved at the time by the Trustee, as provided in Section 5.02.
(d) A copy of each such report shall, at the time of such transmission
to such Holders, be filed by the Trustee with each stock exchange upon which the
Securities of such series are listed and also with the Securities and Exchange
Commission. The Company agrees to notify the Trustee when and as the Securities
of any series become listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01. EVENTS OF DEFAULT. In case one or more of the following
Events of Default (unless it is either inapplicable to a particular series or it
is specifically deleted from or modified
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in the instrument establishing such series and the form of Security for such
series) shall have occurred and be continuing with respect to any series of
Securities, that is to say:
(a) default in the payment of any installment of interest upon
any Security of such series as and when the same shall become due and
payable and continuance of such default for a period of 30 days; or
(b) default in the payment of principal of (or premium, if
any, on) the Securities of such series as and when the same shall
become due and payable either at Stated Maturity, upon redemption
(whether through the operation of a Sinking Fund or otherwise), by
declaration or otherwise, or default in the making of any mandatory
Sinking Fund payment or optional Sinking Fund payment; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Securities of such series, or in this Indenture
contained and relating to such series, for a period of 60 days after
the date on which written notice specifying such failure and requiring
the Company to remedy the same shall have been given by registered or
certified mail to the Company by the Trustee, or to the Company and the
Trustee by the Holder of at least twenty-five percent in aggregate
principal amount at Stated Maturity of the Securities of such series at
the time outstanding; or
(d) the Company shall make an assignment for the benefit of
creditors, or shall file a petition in bankruptcy, or the Company shall
be adjudicated insolvent or bankrupt, or shall petition or shall apply
to any court having jurisdiction in the premises for the appointment of
a receiver, trustee, liquidator or sequestrator of, or for, the Company
or any substantial portion of the property of the Company; or the
Company shall commence any proceeding relating to the Company or any
substantial portion of the property of the Company under any
insolvency, reorganization, arrangement, or readjustment of debt,
dissolution, winding-up, adjustment, composition or liquidation law or
statute of any jurisdiction, whether now or hereafter in effect
(hereinafter in this subsection (d) called "Proceeding"); or if there
shall be commenced against the Company any Proceeding and an order
approving the petition shall be entered, or such Proceeding shall
remain undischarged for a period of 60 days; or a receiver, trustee,
liquidator or sequestrator of, or for, the Company or any substantial
portion of the property of the Company shall be appointed and shall not
be discharged within a period of 60 days; or the Company by any act
shall indicate consent to or approval of or acquiescence in any
Proceeding or the appointment of a receiver, trustee, liquidator or
sequestrator of, or for, the Company or any substantial portion of the
property of the Company; PROVIDED THAT a resolution or order for
winding-up the Company with a view to its consolidation, amalgamation
or merger with another company or the transfer of its assets as a
whole, or substantially as a whole, to such other company as provided
in Section 11.01 shall not make the rights and remedies herein
enforceable under this subsection (d) of Section 6.01 if such
lastmentioned company shall, as a part of such consolidation,
amalgamation, merger or
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transfer, and within 60 days from the passing of the resolution or the
date of the order, comply with the conditions to that end stated in
Section 11.01; or
(e) default under other indebtedness of the Company for money
borrowed by the Company having unpaid principal in excess of the
greater of (a) $10,000,000 or (b) 2 percent of the Company's
Consolidated Net Tangible Assets or under any indenture or other
instrument under which any such indebtedness having unpaid principal in
excess of the greater of (a) $10,000,000 or (b) 2 percent of the
Company's Consolidated Net Tangible Assets has been issued or by which
it is governed, whether now existing or hereafter created, which
results in such other indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, without such acceleration being rescinded or annulled within
60 days after the date on which written notice specifying such default
and requiring the Company to remedy the same 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 twenty-five percent
in aggregate principal amount at Stated Maturity of the Securities of
such series at the time outstanding;
then and in each and every such case, so long as such Event of Default with
respect to such series shall not have been remedied or waived, unless the
principal of all Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than twenty-five percent
in aggregate principal amount at Stated Maturity of the Securities of such
series then outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Holders), may declare the principal (or, in the
case of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) of all the Securities of such
series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if at
any time after the principal of the Securities of such series (or, in the case
of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest, if any, upon all the Securities of such series and the
principal of (and premium, if any, on) any and all Securities of such series
which shall have become due otherwise than by such acceleration (with interest
upon such principal (and premium, if any), and to the extent that payment of
such interest is enforceable under applicable law, upon overdue installments of
interest at the rate borne by the Securities of such series (or, in the case of
Original Issue Discount Securities, at the yield to Stated Maturity) to the date
of such payment or deposit), and such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith, and any and all
defaults under this Indenture, other than the nonpayment of the principal of
Securities of such series which shall have become due by such acceleration,
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shall have been remedied -- then and in every such case the Holders of a
majority in aggregate principal amount at Stated Maturity of the Securities of
such series then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
In case the Trustee or any Holders 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 Holders, then and in
every such case the Company, the Trustee and such Holders shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no
such proceedings had been taken.
Section 6.02. COLLECTION OF INDEBTEDNESS BY TRUSTEE, ETC. The Company
covenants that (1) in case default shall be made in the payment of any
installment of interest on any Securities of any series, as and when the same
shall become due and payable, and such default shall have continued for a period
of 60 days, or (2) in case default shall be made in the payment of the principal
of (or premium, if any, on) any Securities of any series when the same shall
have become due and payable, whether at the Stated Maturity of the Securities of
such series or upon redemption (whether through the operation of a Sinking Fund
or otherwise) or upon declaration or otherwise -- then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the Holders of
the Securities of such series, the whole amount that then shall have become due
and payable on all such Securities for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law) upon overdue installments of interest at the
rate borne by the Securities of such series (or, in the case of Original Issue
Discount Securities, at the yield to Stated Maturity); and, in addition thereto,
such further amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of such series and collect in the manner provided by law out of the
property of the Company or other obligor upon the Securities of such series
wherever situated the moneys adjudged or decreed to be payable.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization or other similar judicial proceedings relative to the
Company, its creditors, or its property, the Trustee (irrespective of whether
the principal of the Securities of any series shall
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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, if permitted by law, be entitled and
empowered to file and prove a claim or claims for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Securities
of such series to which the Trustee or the Holders of the Securities of such
series shall be entitled, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of such
Holders hereunder or on the Securities of such series allowed in such judicial
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of any amount payable to the Trustee for compensation and expenses, including
counsel fees; and any trustee in bankruptcy or receiver is hereby authorized by
each of such Holders to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to such
Holders, to pay the Trustee any amount due to it for compensation and expenses,
including counsel fees, incurred by it to the date of such payment. Nothing
herein contained shall be deemed to authorize or empower the Trustee, except in
accordance with action taken under Article Nine, to consent to or accept or
adopt, on behalf of any Holder, any plan of reorganization or readjustment of
the Company affecting the Securities of any series or the rights of any Holder
thereof, or to authorize or empower the Trustee to vote in respect of the claim
of any such Holder in any such proceedings.
All rights of action and of asserting claims under this Indenture, or
under any Securities of any series, may be enforced by the Trustee without the
possession of any such Securities, or the production thereof at trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment (except for any amounts payable to the Trustee
pursuant to Section 7.06) shall be for the ratable benefit of the Holders in
respect of which the 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
collected by the Trustee, pursuant to Section 6.02 on account of a default
relating to a particular series of Securities, shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the several Securities of such series and coupons
appertaining thereto, if any, and the notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
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FIRST: To the payment of costs and expenses of collection, and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all sums due the Trustee pursuant to Section 7.06
hereof;
SECOND: In case the principal of the Securities of such series
shall not have become due, to the payment of interest on the Securities
of such series, in the order of the maturity of the installments of
such interest, with interest (to the extent that such interest may be
lawfully paid under applicable law and has been collected by the
Trustee) upon the overdue installments of interest at the rate borne by
the Securities of such series (or, in the case of Original Issue
Discount Securities, at the yield to Stated Maturity), such payments to
be made ratably to the persons entitled thereto without discrimination
or preference;
THIRD: In case the principal of the Securities of such series
shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the 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 may be lawfully paid under applicable law and has been
collected by the Trustee) upon overdue installments of interest at the
rate borne by the Securities of such series (or, in the case of
Original Issue Discount Securities, at the yield to Stated Maturity);
and in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the 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 Securities of such series over any other Securities of such
series, ratably to the aggregate of such principal (and premium, if
any) and accrued and unpaid 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.
Section 6.04. LIMITATION ON SUITS BY HOLDERS. No Holder of any Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceedings at law or in equity upon
or under or with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of an Event of Default with
respect to Securities of that series and unless the Holders of not less than
twenty-five percent in aggregate principal amount at Stated Maturity of the then
outstanding Securities of such series shall have made written request upon the
Trustee to institute such action or proceedings in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the cost, 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
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request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the taker and Holder
of any Security of any series with every other such taker and Holder and the
Trustee, that no one or more Holders of such Securities shall have any right in
any manner whatever by virtue or by availing of any provision of this Indenture
to affect, disturb or prejudice the rights of the Holders of any other such
Securities or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of such Securities. 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 the foregoing paragraph or any other provision in this
Indenture, however, any right of any Holder to receive payment of the principal
of (and premium, if any) and interest on any Security on or after the respective
due dates expressed in such Security (including any date fixed for redemption
pursuant hereto, including any Sinking Fund payment date) or to institute suit
for the enforcement of any such payment on or after such respective dates shall
not be impaired or affected without the consent of such Holder.
Section 6.05. REMEDIES CUMULATIVE; DELAY OR OMISSION IN EXERCISE OF
RIGHTS NOT A WAIVER OF DEFAULT. All powers and remedies given by this Article
Six 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 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 Six 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
SECURITIES OF ANY SERIES TO DIRECT TRUSTEE AND TO WAIVE DEFAULT. The Holders of
a majority in aggregate principal amount at Stated Maturity of the 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 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 hereof, 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 Securities of such series not taking part in
such direction; and PROVIDED FURTHER, that nothing in this Indenture contained
shall impair the right of the Trustee in its discretion to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
by such Holders.
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Prior to the declaration of the maturity of the Securities of any series as
provided in Section 6.01, the Holders of a majority in aggregate principal
amount at Stated Maturity of the Securities of such series at the time
outstanding may on behalf of the Holders of all of the Securities of such series
waive any past default hereunder and its consequences, except a default in the
payment of the principal of (and premium, if any) or interest on any of the
Securities of such series. In case of any such waiver, the Company, the Trustee
and the Holders of the Securities of such series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Section 6.07. TRUSTEE TO GIVE NOTICE OF DEFAULT KNOWN TO IT, BUT MAY
WITHHOLD SUCH NOTICE IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days
after the occurrence of a default, give to the Holders of all then outstanding
Securities, in the manner and to the extent provided in subsection (c) of
Section 5.04, notice of all defaults known to the Trustee with respect to such
Securities, unless such defaults shall have been cured or waived before the
giving of such notice (the term "default" or defaults" for the purposes of this
Section 6.07 being hereby defined to be any event or events, as the case may be,
specified in clauses (a), (b), (c), (d) and (e) of Section 6.01, not including
periods of grace, if any, provided for therein and irrespective of the giving of
the written notice specified in clauses (c) and (e) of Section 6.01); PROVIDED
THAT, except in the case of default in the payment of the principal of (or
premium, if any, on) or interest on any of the Securities of any series or in
the making of any Sinking Fund payment, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or responsible officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest 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 by his acceptance of any Security shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 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 ten percent in principal
amount at Stated Maturity of the Outstanding Securities of any series, or to any
suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security, on or after the
respective due dates expressed in such Security (including any date fixed for
redemption, including any Sinking Fund payment date).
Section 6.09. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants
and agrees (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in
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any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. CERTAIN DUTIES AND RESPONSIBILITIES. The Trustee, prior
to the occurrence of an Event of Default with respect to a particular series of
Securities and after the curing or waiving of all Events of Default which may
have occurred with respect to such series, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default with respect to a particular series of Securities 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 relating to such series, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to a particular series of Securities and after the curing or
waiving of all Events of Default which may have occurred with respect
to such series:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
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(b) 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;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith relating to
Securities of any series in accordance with the direction of the
Holders of not less than a majority in principal amount at Stated
Maturity of the Securities of such series at the time outstanding
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, with respect to the Securities of such
series under this Indenture; and
(d) whether or not therein 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.
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 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 security or indemnity against such risk or
liability is not reasonably assured to it.
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 evidenced by a Company Direction
(unless other evidence in respect thereof is herein specifically
prescribed), and any resolution of the Board of Directors of the
Company shall be evidenced to the Trustee by a Certified Board
Resolution;
(c) the Trustee may consult with counsel 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, 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, pursuant to the provisions of
this Indenture, unless such Holders shall have
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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,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such 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 at Stated Maturity of
Securities of any series then outstanding; 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 or, if paid by the Trustee, shall be repaid by the Company upon
demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 7.03. TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR IN
SECURITIES. The recitals contained herein and in the 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 Securities of any series. The Trustee represents that
it is duly authorized to execute and deliver this Indenture and perform its
obligations hereunder. The Trustee shall not be accountable for the use or
application by the Company of any of the Securities of any series or of the
proceeds thereof.
Section 7.04. TRUSTEE, PAYING AGENT OR SECURITY REGISTRAR MAY OWN
SECURITIES. The Trustee or any paying agent or Security Registrar with respect
to any series of Securities, in its individual or any other capacity, may become
the owner or pledgee of Securities of such series with the same rights it would
have if it were not Trustee, paying agent or Security Registrar with respect to
such Securities.
Section 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Subject
to the provisions of Article Twelve hereof, all moneys received by the Trustee
shall, until used or applied as
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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 money received
by it hereunder except as otherwise agreed with the Company.
Section 7.06. COMPENSATION AND REIMBURSEMENT. The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such reasonable compensation for all services rendered by it
hereunder as is mutually agreed upon by the Company and the Trustee (which shall
not be limited by any provisions of law in regard to the compensation of a
trustee of an express trust), and, except as otherwise expressly provided, the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents,
attorneys and counsel and of all persons not regularly in its employ) except any
such expense, disbursement or advance as may arise from its negligence or bad
faith. If any property other than cash shall at any time be subject to a lien in
favor of the Holders, the Trustee, if and to the extent authorized by a
receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such lien, shall be entitled
to make advances for the purpose of preserving such property or of discharging
tax liens or other prior liens or encumbrances thereon. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense (including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder) incurred without
negligence or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust. 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 the Indenture and the resignation or removal of
the Trustee. Such additional indebtedness shall be secured by a lien, prior to
that of the Securities of any series with respect to which the indebtedness
arose, upon all property and funds held or collected by the Trustee, as such,
relating to such series except funds held in Trust for the payment of principal
of (and premium, if any) or interest on Securities of such series.
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, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof is 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.
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Section 7.08. DISQUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS. If
the Trustee has or shall acquire any conflicting interest, as defined in the
Trust Indenture Act, then, within 90 days after ascertaining that it has such
conflicting interest, and if the default (as defined in the Trust Indenture Act)
to which such conflicting interest relates has not been cured or waived or
otherwise eliminated before the end of such 90-day period, the Trustee shall
either eliminate such conflicting interest or resign in the manner and with the
effect specified in the Trust Indenture Act and this Indenture.
Section 7.09. REQUIREMENTS FOR ELIGIBILITY OF TRUSTEE. The Trustee
hereunder shall at all times be a corporation or banking association organized
and doing business under the laws of the United States of America or of any
State or of the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 subject to supervision or examination by Federal, State or District
of Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 7.09,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Section 7.10. RESIGNATION AND REMOVAL OF TRUSTEE. (a) The Trustee, or
any trustee or trustees hereafter appointed, may at any time resign as Trustee
with respect to any series of Securities by giving written notice of resignation
to the Company and by giving notice thereof to the Holders of the Securities of
such series in the manner and to the extent provided in subsection (c) of
Section 5.04. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee with respect to the Securities of such series shall have
been so appointed and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any Holder
who has been a bona fide Holder of a Security or Securities of the affected
series for at least six months may, subject to the provisions of Section 6.08,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee with respect to the Securities of
such series. Such court may thereupon, after such notice, if any, as it may deem
proper and advisable, appoint a successor trustee with respect to the Securities
of such series.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
or Securities of the affected series for at least six months, or
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(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to all
Securities of any affected series and appoint a successor trustee thereof by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or subject to the provisions of Section 6.08,
any Holder who has been a bona fide Holder of a Security or Securities of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee thereof. Such court
may thereupon, after such notice, if any, as it may deem proper and advisable,
remove the Trustee and appoint a successor trustee with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal amount at Stated
Maturity of the Securities of any series at the time outstanding may at any time
remove the Trustee with respect to the Securities of such series and appoint a
successor trustee therefor by the delivery to the Trustee so removed, to the
successor trustee and to the Company of the evidence provided for in Section
8.01 of the action in that regard taken by such Holders.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee for the Securities of any series pursuant to any of the
provisions of this Section 7.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
Section 7.11. ACCEPTANCE BY SUCCESSOR TO TRUSTEE. (a) No successor
trustee with respect to any series of Securities shall accept appointment as
provided in this Section 7.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09.
(b) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
as provided in Section 7.10 an instrument accepting such appointment, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance shall become vested with all the rights, powers, trusts and duties of
the predecessor Trustee with respect to all such Securities; but, on the request
of the Company or the successor trustee, such predecessor Trustee, with like
effect as if originally named as Trustee herein, shall, upon
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payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers and trusts of the predecessor Trustee
and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such predecessor Trustee hereunder subject,
nevertheless, to its lien, if any, provided for in Section 7.06.
(c) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor trustee with respect to the Securities of
the affected series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the predecessor Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee relates,
(2) if the predecessor Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of that or those series as to which the
predecessor Trustee is not resigning shall continue to be vested in the
predecessor Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such trustee; and upon the execution and delivery of
such supplemental indenture, the resignation or removal of the predecessor
Trustee shall become effective to the extent provided therein and each such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the predecessor Trustee
with respect to the Securities of that or those series to which the appointment
of such successor trustee relates; but, on request of the Company or any
successor trustee, such predecessor Trustee shall duly assign, transfer and
deliver to such successor trustee all property and money held by such
predecessor Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor trustee relates.
(d) Upon acceptance of appointment by a successor trustee with respect
to any series of Securities as provided in this Section 7.11, the Company shall
give notice of the succession of such trustee and the address of its Corporate
Trust Office to all Holders of Securities of any such series in the manner and
to the extent provided in subsection (c) of Section 5.04. If the Company fails
to provide such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be provided
at the expense of the Company.
Section 7.12. SUCCESSOR TO TRUSTEE BY MERGER, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business
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of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be qualified under the provisions of Section 7.08 and eligible
under the provisions of Section 7.09 without the execution or filing of any
paper or any further act on the part on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of the particular series
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 Securities so authenticated; and in case at that time any of
the Securities of such series shall not have been authenticated, any successor
Trustee with respect to the Securities of such series may authenticate such
Securities either in the name of any predecessor hereunder with the consent of
such predecessor if the predecessor still exists, which consent shall not
unreasonably be withheld, or in the name of the successor trustee; and in all
such cases such certificates shall have the full force which it is anywhere in
such Securities or in this Indenture provided that the certificate of
authentication of the Trustee shall have; PROVIDED, HOWEVER, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities of the particular series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 7.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to the provisions of subsection (b) of this Section 7.13,
if the Trustee in its individual capacity shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company or of any other
obligor on any Securities within three months prior to a default, as defined in
subsection (c) of this Section 7.13, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities (as
defined in subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
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Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or
applicable state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving, that at the time such
property was so received, the Trustee had no reasonable cause to
believe that a default as defined in subsection (c) of this Section
7.13 would occur within three months; or
(D) to receive payment of any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any such paragraphs is created in renewal
of, or in substitution for or for the purpose of repaying or refunding any
pre-existing claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Holders and the holders of other indenture securities
in such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable state law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Holders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to Title 11 of the
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United States Code or applicable state law, but after crediting thereon receipts
on account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable state law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership, or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee, the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee, the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances
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surrounding the making thereof is given to the Holders at the time and
in the manner provided in Section 5.04;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section 7.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
United States Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13:
(1) The term "default" shall mean any failure to make payment
in full of the principal or interest upon any Security of any series or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the
Trust Indenture Act of 1939) outstanding under any other indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 7.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft,
xxxx of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously
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with the creation of the creditor relationship with the Company arising
from the making, drawing, negotiating or incurring of the draft, xxxx
of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon any
Security.
Section 7.14. APPOINTMENT OF ADDITIONAL AND SEPARATE TRUSTEES. Whenever
the Trustee shall deem it necessary or prudent in order to conform to any law of
any jurisdiction, or the Trustee shall be advised by counsel, satisfactory to
it, that it is necessary or prudent in the interest of the Holders of Securities
of any series or in the event that the Trustee shall have been requested to do
so by the Holders of a majority in principal amount at Stated Maturity of the
Securities of any series at the time outstanding, the Trustee and the Company
shall execute and deliver an indenture supplemental hereto and all other
instruments and agreements necessary or proper to constitute another bank or
trust company, or one or more persons appointed by the Company, either to act as
additional trustee or trustees hereunder, jointly with the Trustee, or to act as
separate trustee or trustees hereunder, in any such case with such powers with
respect to the affected series of Securities as may be provided in such
indenture supplemental hereto, and to vest in such bank, trust company or person
as such additional trustee or separate trustee, as the case may be, any
property, title, right, power, duty or obligation of the Trustee with respect to
the affected series of Securities deemed necessary or advisable by the Trustee,
subject to the provisions of this Section 7.14 below set forth. In the event the
Company shall not have joined in the execution of such indenture supplemental
hereto within ten days after the receipt of a written request from the Trustee
so to do, or in case an Event of Default with respect to the particular series
of Securities shall occur and be continuing, the Trustee may act under the
foregoing provisions of this Section 7.14 without the concurrence of the
Company; and the Company hereby appoints the Trustee its agent and
attorney-in-fact to act for it under the foregoing provisions of this Section
7.14 in either of such contingencies. The Trustee may execute, deliver and
perform any deed, conveyance, assignment or other instrument in writing as may
be required by any additional trustee or separate trustee for more fully and
certainly vesting in and confirming to it any property, title, right or powers
with respect to the affected series of Securities conveyed or conferred to or
upon such additional trustee or separate trustee, and the Company shall, upon
the Trustee's request, join therein and execute, acknowledge and deliver the
same; and the Company hereby makes, constitutes and appoints the Trustee its
agent and attorney-in-fact for it and in its name, place and stead to execute,
acknowledge and deliver any such deed, conveyance, assignment or other
instrument with respect to the affected series of Securities in the event that
the Company shall not itself execute and deliver the same within ten days after
receipt by it of such request so to do. Any supplemental indenture executed
pursuant to the provisions of this Section 7.14 shall conform to the provisions
of the Trust Indenture Act of 1939 as in effect as of the date of such
supplemental indenture.
Every additional trustee and separate trustee hereunder shall, to the
extent permitted by law, be appointed and act, and the Trustee shall act with
resect to a particular series of Securities, subject to the following provisions
and conditions:
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(1) the Securities of such series shall be authenticated by
the Trustee and all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Trustee;
(2) all other rights, powers, duties and obligations with
respect to the Securities of such series conferred or imposed upon the
Trustee and such additional trustee or separate trustee or any of them
shall be conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees and separate trustee or
trustees jointly, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations with
respect to the Securities of such series shall be exercised and
performed by such additional trustee or trustees or separate trustee or
trustees;
(3) no power hereby given to, or with respect to which it is
hereby provided may be exercised by, any such additional trustee or
separate trustee with respect to a particular series of Securities
shall be exercised hereunder by such additional trustee or separate
trustee except with the consent of the Trustee; and
(4) No trustee with respect to a particular series of
Securities hereunder shall be personally liable by reason of any act or
omission of any other trustee with respect to such series of Securities
hereunder.
If at any time the Trustee shall deem it no longer necessary or prudent in order
to conform to any such law or shall be advised by counsel that it is no longer
so necessary or prudent in the interest of the Holders of Securities of any
series or in the event that the Trustee shall have been requested to do so in
writing by the Holders of a majority in principal amount at Stated Maturity of
the Securities of such series at the time outstanding, the Trustee and the
Company shall execute and deliver an indenture supplemental hereto and all other
instruments and agreements necessary or proper to remove any additional trustee
or separate trustee with respect to such series. In the event that the Company
shall not have joined in the execution of such indenture supplemental hereto,
instruments and agreements, the Trustee may act on behalf of the Company to the
same extent provided above.
Any additional trustee or separate trustee with respect to any series
of Securities may at any time by an instrument in writing constitute the
Trustee, its agents or attorney-in-fact with full power and authority, to the
extent which may be authorized by law, to do all acts and things and exercise
all discretions which it is authorized or permitted to do or exercise with
respect to such series, for and in its behalf and in its name. In case any such
additional trustee or separate trustee shall die, become incapable of acting,
resign or be removed, all the assets, property, rights, powers, trusts, duties
and obligations of such additional trustee or separate trustee with respect to
such series, as the case may be, so far as permitted by law, shall vest in and
be exercised by the Trustee, without the appointment of a new successor to such
additional trustee
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or separate trustee unless and until a successor with respect to such series is
appointed in the manner hereinbefore provided.
Any request, approval or consent in writing by the Trustee to any
additional trustee or separate trustee of any series of Securities shall be
sufficient warrant to such additional trustee or separate trustee, as the case
may be, to take such action with respect to the particular series of Securities
as may be so requested, approved or consented to.
Each additional trustee or separate trustee appointed pursuant to this
Section 7.14 shall be subject to, and shall have the benefit of, Articles Six,
Seven (other than Section 7.09) and Eight hereof and the following Sections of
this Indenture shall be specifically applicable to each additional trustee and
separate trustee: 5.04(a) (except to the extent that reference therein is made
to its eligibility under Section 7.09), (b), (c) and (d), 6.02, 6.07, 7.01, 7.06
and 7.13; PROVIDED, HOWEVER, that no resignation of an additional or separate
trustee pursuant to Section 7.10 hereof shall be conditioned in any sense
whatever upon the appointment of a successor to such trustee.
ARTICLE EIGHT
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 at Stated Maturity of the Securities of any series may take any 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 (a) by any instrument or any number of
instruments of similar tenor executed by such Holders in person or by agent or
proxy appointed in writing, or (b) by the record of such Holders voting in favor
thereof at any meeting of such Holders duly called and held in accordance with
the provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Holders.
Section 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
shall be satisfactory to the Trustee.
The ownership of a registered Security shall be proved by the Security
Register relating to the series or by a certificate of the Security Registrar.
The ownership of an unregistered Security or any coupon attached to
such Security at its issuance shall be proved by the production of such Security
or coupon or, with respect to unregistered Securities only, by a certificate
executed by any trust company, bank, broker or
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other depositary, wherever situated, if such certificate shall be acceptable to
the Trustee, showing that at the date therein mentioned such person had on
deposit with such depositary, or exhibited to it, the Securities therein
described; or such facts may be proved by the certificate or affidavit of the
person holding such Security, if such certificate or affidavit is acceptable to
the Trustee. The Trustee and the Company may assume that such ownership of any
unregistered Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Security is produced, (2)
such Security is produced by some other person or (3) such Security is no longer
outstanding. The amount of unregistered Securities held by any person may also
be proved in any other manner which the Trustee deems sufficient.
The Trustee may require such additional proof of any matter referred to
in this Section 8.02 as it shall deem necessary.
The record of any meeting of Holders shall be proved in the manner
provided in Section 9.06.
Section 8.03. WHO MAY BE DEEMED OWNER OF SECURITIES. Prior to due
presentment for registration of transfer of a registered Security of any series,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the person in whose name such Security shall be registered or, in the
case of unregistered Securities, the bearer thereof or the owner thereof
determined, pursuant to Section 8.02, as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon made by anyone) for the purpose of
receiving payment of or on account of the principal of (and premium, if any) and
interest on such Security and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by 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 Security.
Section 8.04. SECURITIES OWNED BY COMPANY OR CONTROLLED OR CONTROLLING
COMPANIES DISREGARDED FOR CERTAIN PURPOSES. In determining whether the Holders
of the requisite aggregate principal amount at Stated Maturity of Securities of
any series have concurred in any direction, consent or waiver under this
Indenture, Securities of such series which are owned by the Company or any other
obligor on the Securities of such series or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities of such series shall be
disregarded and deemed not to be outstanding for the purposes of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver, only
Securities of such series which the Trustee knows are so owned shall be so
disregarded. Securities of such series so owned which have been pledged in good
faith may be regarded as outstanding for the purposes of this Section 8.04 if
the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not the Company or any
other obligor on the Securities of such series or a person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection for the Trustee.
Section 8.05. INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE HOLDERS. 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 at Stated Maturity of the Securities of any series
specified in this indenture in connection with such action, any Holder of a
Security of such series which is shown by the evidence to be included in the
Securities of the particular series 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 Security. Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security, and of any 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
Security or such other Security. Any action taken by the Holders of the
percentage in aggregate principal amount at Stated Maturity of the 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 such
Securities.
Section 8.06. RECORD DATE FOR DETERMINATION OF HOLDERS ENTITLED TO
VOTE. The Company may, in the circumstances permitted by the Trust Indenture
Act, set a Record Date for the purpose of determining the Holders entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders. If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such action or, in
the case of any such vote, prior to such vote, the Record Date for any such
action or vote shall be the 30th day (or, if later, the date of the most recent
list of Holders required to be provided pursuant to Section 4.01) prior to such
first solicitation or vote, as the case may be. With regard to any record date,
only the Holders on such date (or their duly appointed proxies) shall be
entitled to give or take, or vote on, the relevant action.
ARTICLE NINE
HOLDERS' MEETINGS AND CONSENTS
Section 9.01. PURPOSES FOR WHICH MEETING MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to the provisions of this Article Nine for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its
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consequences, or to take any other action authorized to be taken by
Holders of Securities of such series pursuant to any of the provisions
of Article Six;
(2) to remove the Trustee and appoint a successor trustee with
respect to Securities of such series pursuant to the provisions of
Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action to be taken by or on behalf of
the Holders of any specified aggregate principal amount at Stated
Maturity of Securities of such series under any other provision of this
Indenture or under applicable law.
Section 9.02. MANNER OF CALLING MEETINGS. The Trustee may at any time
call a meeting of Holders of Securities of any series to take any action
specified in Section 9.01, to be held at such time and at such place in the
Borough of Manhattan, The City and State of New York, or at such other location
as the Trustee shall determine. With respect to registered Securities of any
series, notice of every such meeting, setting forth the time and the place of
such meeting, and in general terms the action proposed to be taken at such
meeting, shall be mailed to such Holders at their addresses as they shall appear
on the Security Register with respect to such Securities. With respect to
unregistered Securities of any series, notice of every such meeting shall be
published in an authorized newspaper on two separate days. Such notice shall be
provided not less than 20 nor more than 120 days prior to the date fixed for the
meeting.
Section 9.03. CALL OF MEETINGS BY COMPANY OR HOLDERS. In case at any
time the Company, pursuant to a Certified Board Resolution, or the Holders of at
least ten percent in aggregate principal amount at Stated Maturity of Securities
of any series then outstanding shall have requested the Trustee to call a
meeting of Holders of Securities of such series to take any action authorized in
Section 9.01 by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have provided the
notice of such meeting within 20 days after receipt of such request, then the
Company or the Holders of such Securities in the amount above specified may
determine the time and the place in the Borough of Manhattan, The City and State
of New York, for such meeting and may call such meeting by providing notice
thereof as provided in Section 9.02.
Section 9.04. WHO MAY ATTEND AND VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of a particular series of Securities, a person
shall (a) be a Holder of one or more Securities of such series or (b) be a
person appointed by an instrument in writing as proxy by a Holder of one or more
Securities of such series. The only persons who shall be entitled to be present
or to speak at any meeting of Holders of a particular series of Securities shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
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Section 9.05. REGULATIONS MAY BE MADE BY TRUSTEE. Notwithstanding any
other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of
a particular series, in regard to proof of the holding of Securities of such
series and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem necessary. Except as
otherwise permitted or required by any such regulations, the holding of
Securities of such series shall be proved in the manner specified in Section
8.02 and the appointment of any proxy shall be proved in the manner specified in
Section 8.02.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 9.03, in which case the Company or
such Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting may be elected by vote of the Holders of a majority in principal
amount at Stated Maturity of Securities of the particular series represented at
the meeting and entitled to vote.
Subject to the provisions of Section 8.04, at the meeting each Holder
of Securities of the particular series or proxy entitled to vote shall have one
vote for each $1,000 principal amount at Stated Maturity of Securities of such
series held or represented by him; PROVIDED, HOWEVER, that no vote shall be cast
or counted at any meeting in respect of any Security of such series challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities of such series held by him or instruments in writing as
aforesaid duly designating him as the person to vote on behalf of other Holders
of Securities of the particular series. At any meeting of Holders duly called
pursuant to the provisions of Section 9.02 or Section 9.03, the presence of
persons holding or persons representing Securities of the particular series in
an aggregate principal amount at Stated Maturity sufficient to take action on
the business for the transaction of which such meeting was called shall
constitute a quorum, but, if less than a quorum be present, the meeting may be
adjourned from time to time by the Holders of a majority in principal amount at
Stated Maturity of the Securities of such series represented at the meeting and
entitled to vote, and the meeting may be held as so adjourned without further
notice.
Section 9.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders or proxies entitled to vote. The chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting, of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or
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more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 9.02.
The record shall be signed and verified by the affidavits of the chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. WRITTEN CONSENT IN LIEU OF MEETINGS. The written
authorization or consent of the requisite percentage herein provided of Holders
of Securities of any series entitled to vote at any meeting of Holders of
Securities of a particular series, evidenced as provided in Article Eight and
filed with the Trustee, shall be effective in lieu of a meeting of such Holders
with respect to any matter provided for in this Article Nine.
Section 9.08. NO DELAY OF RIGHTS BY MEETING. Nothing in this Article
Nine contained shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Holders of Securities of any series, or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders of Securities of such series under any of the
provisions of this Indenture or of the Securities of such series.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
ENTERED INTO WITHOUT CONSENT OF HOLDERS. Without the consent of Holders, the
Company, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Eleven;
(b) to appoint one or more additional or separate trustees to
act under this Indenture in the manner and to the extent contemplated
by Section 7.14;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of
the Holders of Securities of any or all series as its Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Securities of such series, and to make the occurrence,
or the
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occurrence and continuance, of a default of any such additional
covenants, restrictions, conditions or provisions a default or an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth with respect to
Securities to such series, PROVIDED, HOWEVER, that in respect of any
such additional covenant, restriction, condition or provision with
respect to Securities of such series, such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default or
may limit the right of the Holders of a majority in aggregate principal
amount at Stated Maturity of the Securities of such series to waive
such default;
(d) to add, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (i) shall neither (A) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective only when
there is no such Security Outstanding;
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other
provisions in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests of Holders of
Securities of any series;
(f) to modify, amend or supplement this Indenture to comply
with the provisions of Section 11.01;
(g) to provide for the issuance of unregistered Securities, or
the exchangeability of registered Securities of any series with
unregistered Securities of a series issued hereunder, or vice versa,
and to make all appropriate changes for such purpose;
(h) to provide for the issuance under this Indenture of
Securities of a series having any form or terms contemplated by
Sections 2.01 and 2.02; and
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.14.
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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 entered into any supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
10.01 may be executed by the Company and the Trustee without the consent of the
Holders of any Securities of any series at the time outstanding, notwithstanding
any of the provisions of Section 10.02.
Section 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS. With
the consent (evidenced as provided in Section 8.01) of the Holders of not less
than a majority in aggregate principal amount at Stated Maturity of the
Securities of each series affected at the time outstanding, the Company, when
authorized by a resolution of its Board of Directors, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of execution thereof) with respect to Securities of the
particular series for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture relating to such series of Securities or of modifying in
any manner the rights of the Holders of Securities of the particular series;
PROVIDED, HOWEVER, that no such supplemental indenture shall (i) extend the
Stated Maturity of any Security, reduce the principal amount thereof, reduce the
rate or extend the time of payment of any interest thereon, reduce any premium
payable upon the redemption thereof, reduce the amount of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of Stated Maturity thereof pursuant to Section 6.01, modify
provisions relating to amount or regularity of mandatory Sinking Fund payments
or make the principal amount thereof payable in any money other than United
States legal tender for the payment of public or private debts, without the
consent of the Holder of each Security so affected, or (ii) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders
of all Securities of each affected series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with resect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any series not so affected.
Upon the request of the Company, accompanied by a Certified Board
Resolution authorizing the execution of any such supplemental indenture relating
to Securities of a particular series, and upon the filing with the Trustee of
evidence of the consent of Holders of Securities of the particular series as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own
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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 Holders of Securities of a particular
series to approve under this Section 10.02 the particular form of any proposed
supplemental indenture with respect to such series of Securities, but it shall
be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice thereof by first-class mail to the Holders of
registered Securities of each series affected thereby at their addresses as they
shall appear on the Security Register for such Securities, or, in the case of
unregistered Securities, shall give notice in the manner and to the extent
provided in subsection (c) of Section 5.04, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Company to provide
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
Section 10.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
and delivery of any supplemental indenture with respect to any series of
Securities pursuant to the provisions of this Article Ten, this Indenture shall
be and be deemed to be modified and amended with respect to the affected series
of Securities in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Securities of the series affected 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
regard an Opinion of Counsel as conclusive evidence that any such supplemental
indenture with respect to any series of Securities complies with the provisions
of this Article Ten.
Section 10.04. SECURITIES MAY BEAR NOTATION OF CHANGES BY SUPPLEMENTAL
INDENTURES. Securities authenticated and delivered after the execution, pursuant
to the provisions of this Article Ten, of any supplemental indenture with
respect to any series of Securities may bear a notation in the form acceptable
to the Trustee as to any matter provided for in such supplemental indenture. New
Securities of the affected series so modified as to conform, in the opinion of
the Trustee and the Board of Directors of the Company, to any modification of
this Indenture contained in any such supplemental indenture with respect to such
series of Securities may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of the particular series
then outstanding.
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
Section 11.01. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company with or into any other corporation or
corporations (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all the property of the Company to any other corporation
(whether or not affiliated with the Company) authorized to acquire and operate
the same; PROVIDED, HOWEVER, and the Company hereby covenants and agrees, that
upon any such consolidation, merger, sale, conveyance or lease, other than a
merger in which the Company is the continuing corporation, (i) the due and
punctual payment of the principal of and interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company, shall be expressly assumed, by supplemental indenture satisfactory in
form to the Trustee, executed an delivered to the Trustee by the corporation (if
other than the Company) formed by such consolidation, or into which the Company
shall have been merged, or by the corporation which shall have acquired or
leased such property and (ii) the Company or successor entity, as the case may
be, shall not, immediately after such merger or consolidation, or such sale,
conveyance or lease, be in default in the performance of any such covenant or
condition.
Section 11.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case of any
such consolidation, merger, sale, conveyance or lease referred to in Section
11.01 and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest on all
of the Securities and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Company, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as a party. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of Sundstrand Corporation any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation 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
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for the purpose. All the Securities so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof. In the event of any such sale or conveyance, but not any such lease, the
Company or any successor corporation which shall theretofore previously have
become
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such in the manner described in this Article Eleven shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
dissolved and liquidated.
In case of any such consolidation, merger, sale, conveyance or lease
referred to in Section 11.01, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
Section 11.03. OPINION OF COUNSEL AND OFFICERS' CERTIFICATE TO BE GIVEN
TRUSTEE. The Trustee, subject to Section 7.01 and 7.02, shall be provided with,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate stating that any such consolidation, merger, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article Eleven.
ARTICLE TWELVE
DISCHARGE OF INDENTURE AND DEFEASANCE
Section 12.01. TERMINATION OF COMPANY'S OBLIGATIONS.
(a) If the Securities of any series so provide, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of a series, and except as otherwise provided in subsection (d) of this Section
12.01, the provisions of this Indenture as it relates to such Securities shall
no longer be in effect, and the Trustee, at the expense of the Company, shall,
upon Company Direction, execute proper instruments acknowledging the same if the
conditions set forth in paragraphs (1) or (2) or (3) below are satisfied:
(1)(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 2.07 and (ii) Securities for whose payment money (defined for
purposes of this Article Twelve as such coin or currency of the United
States of America as at the time of payment shall be legal tender for
the payment of public and private debts) has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 12.03) have been delivered to the Trustee for cancellation;
(B) the Company has paid or caused to be paid all other sums
payable under this Indenture in respect of the Securities of such
series; and
(C) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction of the
entire indebtedness on all Securities of any such series and the
discharge of this Indenture as it relates to such Securities have been
complied with; or
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(2)(A) all Securities of such series not theretofore delivered
to the Trustee for cancellation (i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or (iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company;
(B) the condition described in Section 12.01(b)(1) has been
satisfied;
(C) the conditions described in paragraphs 1(B) and 1(C) of
this Section 12.01(a) have been satisfied; and
(D) the Company has received an Opinion of Counsel to the
effect that the satisfaction and discharge contemplated by this Section
12.01(a)(2) will not violate the then applicable rules of, or any
related undertaking of the Company to any nationally-recognized
securities exchange on which Securities of that series are listed; or
(3)(A) the conditions referred to or described in paragraphs
2(B), 2(C) and 2(D) of this Section 12.01(a) have been satisfied; and
(B) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in Section
12.01(b)(1) on the 91st day after the date of such deposit; PROVIDED,
HOWEVER, that should that condition fail to be satisfied on or before
such 91st day, the Trustee shall promptly, upon satisfactory receipt of
evidence of such failure, return such deposit to the Company.
(b) If the Securities of any series so provide, except as otherwise
provided in subsection (d) of this Section 12.01, the Company may, at its
option, cease to be under any and all obligations with respect to the Securities
of any series or cease to be under any obligation to comply with any term,
provision or condition set forth in Sections 4.05 and 4.06, and Section 6.01(c)
with respect to Sections 4.05 and 4.06 shall not be deemed to be an Event of
Default under the Indenture and the Debt Securities of such series, at any time
after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or
(ii) U.S. Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient,
after payment based on then applicable law, of all Federal, state and
local taxes in respect thereof, payable by the Trustee, in the opinion
(with respect to (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge
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each instalment of principal (including mandatory Sinking Fund
payments) of, and premium, if any, with respect to and interest on, the
Outstanding Securities of such series on the dates such instalments of
interest or principal are due;
(2) if the Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's exercise
of its option under this paragraph would not cause such Securities to
be delisted;
(3) the interest in the Holders in such deposit shall have
been duly perfected under applicable provisions of the Uniform
Commercial Code;
(4) no Event of Default or event (including such deposit)
which with notice or lapse of time would become an Event of Default
with respect to the Securities of such series shall have occurred and
be continuing on the date of such deposit;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes
as a result of the Company's exercise of its option under this Section
12.01(b) and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the
case if such option had not been exercised; and
(6) the Company has delivered to the Trustee an Opinion of
Counsel and Officer's Certificate, each stating that all of the
conditions in this Section 12.01(b) have been complied with.
(c) For purposes of this Article Twelve, "U.S. Government Obligations"
means securities that are (i) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (ii)
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 under clauses (i) or (ii) are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
to any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
(d) The Company's obligations in Sections 2.05, 2.07, 4.02, 4.03, 4.04,
5.01, 5.02(a), 7.06, 7.10, 7.11 and 14.01 with respect to the Securities of such
series, shall survive
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until all of the Securities of such series are no longer outstanding. Thereafter
the Company's obligations in Sections 7.06 and 14.01 shall survive.
(e) After a deposit described in subsection (a) or (b) of this Section
12.01, such moneys or payments of principal of and any interest on such U.S.
Government Obligations, as the case may be, shall be payable to the Holders of
the Securities of such series, as principal of and any interest on such
Securities, in the manner and on the dates specified in the Securities of such
series. The Trustee then shall, upon request, acknowledge in writing the
discharge of the Company's obligations under the Securities of such series and
this Indenture with respect to the Securities of such series, except for those
surviving obligations specified above. Prior to making any deposit pursuant to
this Article Twelve, the Company shall mail a notice by first-class mail to each
Holder of Registered Securities of such series and, if the Securities of such
series were initially issued as unregistered Securities, shall cause to be
published at least once in an authorized newspaper a notice, in each case, that
states that the Company intends to take such action.
(f) Notwithstanding any of the foregoing, the Trustee's rights, duties,
obligations and immunities under this Indenture with respect to Securities of
any series shall survive until all of the Securities of such series are no
longer outstanding.
Section 12.02. APPLICATION OF TRUST DEPOSIT. The Trustee shall hold in
trust any money or U.S. Government Obligations deposited with it pursuant to
Section 12.01. The Trustee shall apply the deposited money or payments of
principal of and any interest on U.S. Government Obligations through the paying
agent and in accordance with this Indenture to the payment of principal and
interest, if any, on the Securities of the series, or to the payment of any
mandatory Sinking Fund payments, for which the money or U.S. Government
Obligations have been deposited.
Section 12.03. REPAYMENT TO COMPANY. The Trustee and the paying agent
shall promptly pay to the Company upon written request any excess money or U.S.
Government Obligations held by them at any time. Subject to applicable law, any
money or U.S. Government Obligations deposited with the Trustee or any paying
agent, or then held by the Company, in trust for the payment of the principal of
(and premium, if any) or any interest on any Security, or for the payment of any
mandatory Sinking Fund payments, and remaining unclaimed for two years after
such principal, premium or interest, or such mandatory Sinking Fund payments,
have become due and payable shall be paid to the Company on written request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such paying agent with respect to such trust money or U.S. Government
Obligations, and all liability of the Company as trustee thereof, shall
thereupon cease.
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
Section 13.01. INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND
EMPLOYEES OF COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer, director or employee, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers, directors or employees, as such, of the Company or of
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute of, and any and all such
rights and claims against every such incorporator, stockholder, officer,
director or employee, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution and delivery of this Indenture and the issue of
Securities hereunder.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 14.02. ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR
CORPORATION 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 corporation that shall at
that time be the successor of the Company.
Section 14.03. REQUIRED NOTICES OR DEMANDS. Except as provided in
Section 6.01(c) and (d), 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
any Holders of Securities of any series to or on the
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Company may be given or served by being deposited first-class 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 or delivered by hand or
courier to: Sundstrand Corporation, 0000 Xxxxxxxx Xxxxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxx 00000-0000, to the attention of the Secretary. 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 first-class
postage prepaid in a post office letter box in the United States addressed to
the Corporate Trust Office. Any notice required or permitted to be mailed to a
Holder of Securities of any series by the Company or the Trustee pursuant to the
provisions of this Indenture shall be deemed to be properly mailed by being
deposited first-class 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
Security Register for the particular series of Securities. Any notice required
or permitted to be given to a Holder of unregistered Securities of any series
shall be deemed to be properly given if such notice is published in an
authorized newspaper on two separate days. Notices, directions, requests and
demands shall be deemed delivered on the third day after being properly mailed,
on the day delivered if delivered by hand or by courier and on the day after the
second publication if given by publication in an authorized newspaper on two
separate days.
Section 14.04. INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance with the laws of
such State. The descriptive headings of the Articles and Sections of this
Indenture are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
Section 14.05. 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 any such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion, as the
case may be, need be furnished.
Except as otherwise provided in this Indenture, each certificate or
opinion provided for in this Indenture (other than certificates provided
pursuant to Section 5.03(d)) and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture shall
include: (1) a statement that the person making such certificate or opinion has
read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he or she has made such examination or investigation as
is necessary to enable him or her to express an informed opinion as to
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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 14.06. PAYMENTS DUE ON HOLIDAYS. In any case where the date of
maturity of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a business day, then payment of interest
or principal (and premium, if any) need not be made on such date, but may be
made on the next succeeding business day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
Section 14.07. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 through 317 of the Trust Indenture
Act, by the operation of Section 318(c) thereof, such imposed duties shall
control, except as, and to the extent, expressly excluded from this Indenture,
as permitted by the Trust Indenture Act. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, such modification or exclusion shall be controlling.
Section 14.08. 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.
Section 14.09. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
The party of the second part hereby accepts the trusts in this
Indenture declared and provided upon the terms and conditions hereinabove set
forth.
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IN WITNESS WHEREOF, SUNDSTRAND CORPORATION, the party of the first
part, and THE FIRST NATIONAL BANK OF CHICAGO, the party of the second part, have
caused this Indenture to be duly executed, and their respective corporate seals
to be affixed and attested, all as of the day and year first above written.
SUNDSTRAND CORPORATION
[CORPORATE SEAL] By
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Attest:
-----------------------------
Assistant Secretary
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
[CORPORATE SEAL] By
------------------------------------------
Name:
Title:
Attest:
-----------------------------
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STATE OF ILLINOIS )
) SS:
COUNTY OF WINNEBAGO )
I, _______________, do hereby certify that on the ____ day of December,
1998, ____________ and _________________ personally appeared before me and being
first duly sworn by me severally acknowledged that they signed the foregoing
document in the respective capacities therein set forth and declared that the
statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and
year before written.
----------------------------------------
NOTARY PUBLIC
My Commission Expires:
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On this ____ day of December, 1998, before me personally came
_____________ to me known, who, being by me duly sworn, did depose and say that
he or she is an _______________________ of THE FIRST NATIONAL BANK OF CHICAGO,
one of the parties described in and which executed the above instrument; that he
or she knows the corporate seal of said corporation; that the seal affixed to
the instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said Corporation, and that he or she signed his or her
name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand the day and the year in
this Certificate first above written.
----------------------------------------
NOTARY PUBLIC
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SCHEDULE A(1)
[FORM OF FACE OF SECURITY]
SUNDSTRAND CORPORATION
No........... $..........
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT ANY
LEGEND REQUIRED FOR FEDERAL INCOME TAX PURPOSES.]
[DESIGNATION OF SECURITIES OF EACH SERIES AS
SPECIFIED IN THE INSTRUMENT ESTABLISHING SUCH SERIES]
SUNDSTRAND CORPORATION, a corporation incorporated under the laws of the State
of Delaware (hereinafter called the "Company"), for value received, hereby
promises to pay [IF THE SECURITY IS UNREGISTERED, INSERT-BEARER] [IF THE
SECURITY IS REGISTERED, INSERT , OR REGISTERED ASSIGNS] the principal sum of
DOLLARS on at the office or agency of the Company in the Borough of
Manhattan,The City and State of New York and such other location or locations as
may be provided for pursuant to the Indenture referred to on the reverse hereof,
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts [IF
THE SECURITY IS REGISTERED AND BEARS INTEREST PRIOR TO ITS STATED MATURITY,
INSERT and to pay interest on said principal sum at the rate of % per
annum, at said offices or agencies, in like coin or currency, from the or ,
as the case may be, next preceding the date of this [SECURITY] TO WHICH INTEREST
HAS BEEN PAID OR DULY PROVIDED FOR ON THE [SECURITIES], OR, IF THE DATE OF THIS
[SECURITY] IS A OR TO WHICH INTEREST HAS BEEN PAID OR DULY PROVIDED FOR ON
THE [SECURITIES], from or, if the date of this [SECURITY] is after any or
, and prior to the next succeeding or , from such or ; provided,
however, that if an to the extent the Company shall default in payment of the
interest due on such or then from the next preceding or to which
interest has been paid or duly provided for on the [SECURITIES], or if no
interest has been paid or duly provided for on the [SECURITIES], from .
Interest will be payable on , and semi-annually on each and
thereafter, until payment of said principal sum has been made or duly provided
for. The interest so payable on any or will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this [SECURITY] is registered at the close of
business on the Record Date ( of , as the case may be) next preceding
such or and may, at the option of the Company, be paid by check mailed
to the person entitled thereto at his address last appearing on the Security
Register.]
The provisions of this [SECURITY] are continued on the reverse hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
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This [SECURITY] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed manually
by the Trustee under the Indenture referred to on the reverse hereof.
In Witness Whereof, SUNDSTRAND CORPORATION has caused this [SECURITY]
to be signed by its duly authorized officers, manually or in facsimile, and a
facsimile of its corporate seal to be imprinted hereon.
Dated:
--------------------
SUNDSTRAND CORPORATION
(Corporate Seal) By
--------------------------
By
--------------------------
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SCHEDULE A(2)
[FORM OF REVERSE OF SECURITY]
SUNDSTRAND CORPORATION
[DESIGNATION OF SECURITIES OF EACH SERIES AS SPECIFIED IN THE
INSTRUMENT ESTABLISHING SUCH SERIES]
This Security is one of a duly authorized issue of "[INSERT FULL
DESIGNATION OF SERIES]" of the Company, designated as its "[SECURITIES]",
limited to the aggregate principal amount [IF THE SECURITY IS AN ORIGINAL ISSUE
DISCOUNT SECURITY, INSERT - at Stated Maturity] of Dollars ($ ), all
issued under and pursuant to an indenture, dated as of December 1, 1998 (herein
referred to as the "Indenture"), duly executed and delivered by the Company and
Bankers Trust Company (hereinafter called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the [SECURITIES].
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -
In case an Event of Default, as defined in the Indenture, relating to the
[SECURITIES] shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture provides that in certain events such declaration as it affects the
[SECURITIES] and its consequences, may be waived by the Holders of a majority in
aggregate principal amount of the [SECURITIES] then outstanding. Any such waiver
by the Holder of this [SECURITY] (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this [SECURITY] and of any [SECURITY] issued [IF THE SECURITY IS
REGISTERED, INSERT - upon the registration of transfer hereof or] in exchange or
substitution herefor, irrespective of whether or not any notation of such waiver
is made upon this [SECURITY] or such other [SECURITIES].]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT - In
case an Event of Default, as defined in the Indenture, relating to the
[SECURITIES] shall have occurred and be continuing, an amount of principal of
the [SECURITIES] may be declared due and payable in the manner and with the
effect provided in the Indenture. Such amount shall be equal to [INSERT FORMULA
FOR DETERMINING THE AMOUNT, WHICH AMOUNT SHALL BE DETERMINED BY THE COMPANY AND
CERTIFIED TO THE TRUSTEE IN AN OFFICER'S CERTIFICATE]. Upon payment (1) of the
amount of principal so declared due and payable and (2) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of, and interest, if any,
on the [SECURITIES] shall terminate.]
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[INCLUDE THE FOLLOWING PARAGRAPH IF SERIES IS SUBJECT
TO A SINKING FUND]
The [SECURITIES] are entitled to the benefit of a Sinking Fund as
provided for pursuant to the Indenture and are subject to redemption through
operation of the Sinking Fund on at [100%] OF THEIR PRINCIPAL AMOUNT
(HEREIN CALLED THE "SINKING FUND REDEMPTION PRICE") TOGETHER WITH ACCRUED
INTEREST TO THE DATE FIXED FOR REDEMPTION. EXCEPT AS HEREINAFTER PROVIDED, ON OR
PRIOR TO EACH DATE, THE COMPANY WILL DEPOSIT WITH THE TRUSTEE OR A PAYING AGENT
(OR SEGREGATE AND HOLD IN TRUST) AN AMOUNT SUFFICIENT TO REDEEM $ PRINCIPAL
AMOUNT OF [SECURITIES] on such date. At its option, the Company may pay into the
Sinking Fund, on or prior to each such date, an additional sum up to % of the
amount required to be deposited on such date for the Sinking Fund (before taking
into account any applicable credits as hereinafter mentioned). The Trustee will
apply any such amounts deposited by the Company to redemption of [SECURITIES] as
provided in the Indenture. In lieu of making cash payments into the Sinking Fund
the Company may, to the extent and upon the terms provided in the Indenture,
deliver to the Trustee for cancellation, certain [SECURITIES] theretofore
acquired by the Company and receive credit therefor, at the Sinking Fund
redemption price, or receive credit, at such price, for [SECURITIES] theretofore
called for redemption otherwise than through the Sinking Fund and which shall
have ceased to be outstanding.
[INCLUDE THE FOLLOWING FOUR PARAGRAPHS IF THE SERIES IS
SUBJECT TO REDEMPTION BEFORE STATED MATURITY]
The [SECURITIES] may be redeemed, at the option of the Company, as a
whole or from time to time in part (selected in such manner as the Trustee may
deem appropriate and fair) at any time on or after , upon the notice
referred to below, at the following redemption prices (expressed in percentages
of the principal amount) together with interest accrued to the date fixed for
redemption (except that any interest installments becoming due on the date fixed
for redemption will be payable to the holders of such [SECURITIES], or of one or
more previous [SECURITIES] evidencing all or a portion of the same debt as that
evidenced by such particular [SECURITIES], of record at the close of business on
the relevant Record Date referred to on the face hereof or in the Indenture).
If redeemed during the 12-month period beginning
Year Percentage Year Percentage
[DATES, YEARS AND PERCENTAGES TO BE SPECIFIED
IN INSTRUMENT ESTABLISHING SUCH SERIES]
Notice of redemption shall be given to the Holders of [SECURITIES] to
be redeemed, as a whole or in part, whether through operation of the Sinking
Fund or otherwise, [IF THE SECURITY IS UNREGISTERED, INSERT - by twice
publishing a notice in an authorized newspaper] [IF THE SECURITY IS REGISTERED,
INSERT - by mailing a notice of such redemption to their last addresses as they
shall
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appear upon the Security Register] not less than 20 nor more than 60 days prior
to the date fixed for redemption, all as provided in the Indenture. If this
[SECURITY] (or a portion hereof) is duly called for redemption and funds for
payment duly provided, this [SECURITY] (or such portion) shall cease to bear
interest from and after the date fixed for redemption. The Company shall not be
required (a) to issue, register the transfer of or exchange any Securities of
any series for a period of 15 days next preceding any selection of Securities of
such series to be redeemed or (b) to register the transfer of or exchange any
Securities of such series selected, called or being called for redemption.
In the event of redemption of this [SECURITY] in part only, a new
[SECURITY] or [SECURITIES] in authorized denominations and in principal amount
equal to the unredeemed portion hereof shall be issued upon the cancellation
hereof.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than 66 2/3% in aggregate
principal amount at Stated Maturity of the [SECURITIES] at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures
which, if they pertain specifically to the [SECURITIES], may add any provisions
to or change in any manner or eliminate any of the provisions of the Indenture
relating to the [SECURITIES] or of any supplemental indenture relating to the
[SECURITIES] or modifying in any manner the rights of the Holders of the
[SECURITIES]; provided, however, that no such supplemental indenture shall (i)
extend the Stated Maturity of any [SECURITY], reduce the principal amount
thereof, reduce the rate or extend the time of payment of any interest thereon,
reduce any premium payable upon the redemption thereof, [IF THE SECURITY IS AN
ORIGINAL ISSUE DISCOUNT SECURITY, INSERT - reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Stated Maturity thereof,] [IF THE SECURITY
HAS MANDATORY SINKING FUND PROVISIONS - modify provisions relating to amount or
regularity of mandatory Sinking Fund payments,] or make the principal amount
thereof payable in any money other than United States legal tender for the
payment of public or private debts without the consent of the Holder of each
[SECURITY] so affected, or (ii) reduce the aforesaid percentage of [SECURITIES],
the consent of the Holders of which is required for any such supplemental
indenture relating to the [SECURITIES], without the consent of the Holders of
all [SECURITIES] then outstanding. It is also provided in the Indenture that,
prior to the declaration of maturity of the [SECURITIES] upon the occurrence of
an Event of Default relating to the [SECURITIES] as defined in the Indenture,
the Holders of a majority in aggregate principal amount at Stated Maturity of
the [SECURITIES] at the time outstanding may on behalf of the Holders of all of
the [SECURITIES] waive any past default under the Indenture relating to the
[SECURITIES] and its consequences, except a default in the payment of the
principal of (or premium, if any) or interest on any of the [SECURITIES]. Any
such consent or waiver by the Holder of this [SECURITY] (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this [SECURITY] and of any [SECURITY]
issued [IF THE SECURITY IS REGISTERED, INSERT - upon the registration of
transfer hereof or] in exchange or substitution herefor, irrespective of whether
or not any notation of such consent or waiver is made upon this [SECURITY] or
such other [SECURITIES].
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No reference herein to the Indenture and no reference to any provision
of this [SECURITY] or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this [SECURITY] at the place, at the
respective times, at the rate and in the currency herein prescribed.
[IF THE SERIES SO PROVIDES, INSERT] The Company may terminate all of
its obligations under the [SECURITIES] and, with certain limited exceptions
described in the Indenture, under the Indenture, by irrevocably depositing in
trust with the Trustee money, or U.S. Government Obligations (as defined in the
Indenture), or any combination of the two, sufficient to pay principal of and
interest on the [SECURITIES] to maturity or redemption as the case may be.
The [SECURITIES] are issuable as [IF APPLICABLE - REGISTERED] [IF
APPLICABLE - BEARER] [SECURITIES] [IF APPLICABLE - WITHOUT] [IF APPLICABLE -
WITH] coupons in denominations of [$1,000] and any integral multiple of
[$1,000]. At the office or agency to be maintained by the Company in the Borough
of Manhattan, The City and State of New York, or at such other location or
locations as may be provided for in the Indenture, and in the manner and subject
to the limitations provided in the Indenture, [SECURITIES] may be exchanged by
the Holder hereof without charge except for any tax or other governmental charge
imposed in relation thereto, for a like aggregate principal amount at Stated
Maturity of [SECURITIES] of other authorized denominations.
[INCLUDE THE FOLLOWING TWO PARAGRAPHS IF SERIES IS REGISTERED]
This [SECURITY] is transferable and the registration of the transfer
hereof may be effected by the registered Holder hereof or by his attorney duly
authorized in writing upon due presentment for registration of transfer at the
office or agency of the Company, in the Borough of Manhattan, The City and State
of New York, or at such other location or locations as may be provided for in
the Indenture, but only in the manner and subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in relation thereto. Upon any such registration of transfer, a new
[SECURITY] or [SECURITIES], of authorized denominations, for a like aggregate
principal amount at Stated Maturity will be issued to the transferee in exchange
therefor.
Prior to due presentment for registration of transfer of this
[SECURITY], the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered Holder hereof as the absolute owner
hereof (whether or not this [SECURITY] shall be overdue and notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of receiving payment as herein provided and all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
[INCLUDE THE FOLLOWING PARAGRAPH IF THE SECURITY IS UNREGISTERED]
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The Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the bearer hereof and the bearer of any coupon appertaining
hereto as the absolute owner hereof and thereof (whether or not this [SECURITY]
or such coupon shall be overdue and notwithstanding any notation of ownership or
other writing hereon or thereon made by anyone) for the purpose of receiving
payments as herein and therein provided and for all other purposes.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this [SECURITY], or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or of any successor corporation whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
[DEFEASANCE, IF APPLICABLE]
All terms used in this [SECURITY] which are defined in the Indenture
shall have the meanings assigned to them therein.
[FORM OF COUPON, IF ANY, TO BE PROVIDED
FOR IN INSTRUMENT ESTABLISHING SERIES]
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SCHEDULE B
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the [SECURITIES] described in the within-mentioned
Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
By
---------------------------------
AUTHORIZED SIGNATURE
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