1
EXHIBIT 4.1
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XXXXXX INDUSTRIES, INC.
TO
TEXAS COMMERCE
BANK NATIONAL ASSOCIATION
as Trustee
______________________
INDENTURE
Dated as of [ ], 1995
Providing for issuance of Debt Securities in Series
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2
XXXXXX INDUSTRIES, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE DATED AS OF [ ], 1995
Trust Indenture Act Section Indenture Section
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Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03, 8.09
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.09
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.08
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.13(b)
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(a)(2)
6.04(b)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
6.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(a), 6.04(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04(d)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.03
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.05
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08
6.04(a)(6)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(a)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(b)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.01
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.07
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
7.07
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.04
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02
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(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.07
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
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TABLE OF CONTENTS*/
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS.
SECTION 1.01. Certain terms defined; other terms
defined in Trust Indenture Act of
1939 or by reference therein in
Securities Act of 1933 to have
meanings therein assigned . . . . . . . . . . . . . . . . . . . 2
Agent Member . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Applicable Debt Securities . . . . . . . . . . . . . . . . . . . 3
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 4
Certified Resolutions or Board
Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt Security or Debt Securities; Outstanding . . . . . . . . . 4
Debt Securityholder or Holder . . . . . . . . . . . . . . . . . . 6
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Eligible Obligations . . . . . . . . . . . . . . . . . . . . . . 6
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 6
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Global Debt Security . . . . . . . . . . . . . . . . . . . . . . 7
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . 8
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 9
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Principal Office of the Trustee . . . . . . . . . . . . . . . . . 9
Principal Property . . . . . . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . 10
__________________________________
*/ The table of contents, comprising pages (i) to (vi) inclusive, is not a part of the Indenture.
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Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . 11
Sale and Leaseback Transaction . . . . . . . . . . . . . . . . . 12
Secured Indebtedness . . . . . . . . . . . . . . . . . . . . . . 12
Shareholders' Equity . . . . . . . . . . . . . . . . . . . . . . 13
Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . 14
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . 14
Voting Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF DEBT SECURITIES.
SECTION 2.01. Issuable in Series; Unlimited
Aggregate Principal Amount . . . . . . . . . . . . . . . . . . 15
SECTION 2.02. Documents Required for Issuance of
Each Series of Debt Securities . . . . . . . . . . . . . . . . 16
SECTION 2.03. Denominations; Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.04. Execution of Debt Securities . . . . . . . . . . . . . . . . . . 26
SECTION 2.05. Exchange and Registration of Transfer
of Debt Securities . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.06. Mutilated, Destroyed, Lost or Stolen
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.07. Temporary Debt Securities . . . . . . . . . . . . . . . . . . . 31
SECTION 2.08. Cancellation of Debt Securities Paid, Etc. . . . . . . . . . . . 33
SECTION 2.09. Debt Securities to Be Treated Equally . . . . . . . . . . . . . 33
SECTION 2.10. Computation of Interest . . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.11. Global Debt Securities; Depositary . . . . . . . . . . . . . . . 34
ARTICLE THREE
SINKING FUNDS.
SECTION 3.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . 39
SECTION 3.02. Satisfaction of Sinking Fund Payments
with Debt Securities . . . . . . . . . . . . . . . . . . . . . 40
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SECTION 3.03. Redemption of Debt Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE FOUR
REDEMPTION OF DEBT SECURITIES.
SECTION 4.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.02. Notice of Redemption; Selection of
Debt Securities . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.03. Payment of Debt Securities Called for
Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.02. Office for Notices and Payments, Etc. . . . . . . . . . . . . . . 47
SECTION 5.03. Appointments to Fill Vacancies in
Trustee's Office . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.04. Provision as to Paying Agent . . . . . . . . . . . . . . . . . . 48
SECTION 5.05. Secured Indebtedness of the Company
and Restricted Subsidiaries . . . . . . . . . . . . . . . . . . 50
SECTION 5.06. Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . 55
SECTION 5.07. Waiver of Covenants . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5.08. Certificate to Trustee . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE SIX
DEBT SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE.
SECTION 6.01. Debt Securityholders' Lists . . . . . . . . . . . . . . . . . . . 60
SECTION 6.02. Preservation and Disclosure of Lists . . . . . . . . . . . . . . 61
SECTION 6.03. Reports by the Company . . . . . . . . . . . . . . . . . . . . . 64
SECTION 6.04. Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . 65
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ARTICLE SEVEN
REMEDIES OF THE TRUSTEE AND
DEBT SECURITYHOLDERS ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 7.02. Payment of Applicable Debt Securities on
Default; Suit Therefor . . . . . . . . . . . . . . . . . . . . 74
SECTION 7.03. Application of Money Collected by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 7.04. Proceedings by Debt Securityholders . . . . . . . . . . . . . . . 81
SECTION 7.05. Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . 83
SECTION 7.06. Remedies Cumulative and Continuing . . . . . . . . . . . . . . . 83
SECTION 7.07. Direction of Proceedings and Waiver
of Defaults by Majority of
Debt Securityholders . . . . . . . . . . . . . . . . . . . . . 84
SECTION 7.08. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 7.09. Undertaking to Pay Costs . . . . . . . . . . . . . . . . . . . . 87
SECTION 7.10. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . 87
ARTICLE EIGHT
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 8.02. Reliance on Dcouemnts, Opinions, Etc. . . . . . . . . . . . . . . 91
SECTION 8.03. Responsibility for Recitals, Etc. . . . . . . . . . . . . . . . . 94
SECTION 8.04. Trustee, Paying Agent or Debt Security
Registrar May Own Debt Securities . . . . . . . . . . . . . . . 94
SECTION 8.05. Money to Be Held in Trust . . . . . . . . . . . . . . . . . . . . 94
SECTION 8.06. Compensation and Expenses of Trustee . . . . . . . . . . . . . . 95
SECTION 8.07. Officers' Certificate as Evidence . . . . . . . . . . . . . . . . 96
SECTION 8.08. Conflicting Interest of Trustee . . . . . . . . . . . . . . . . . 96
SECTION 8.09. Eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . 110
SECTION 8.10. Resignation or Removal of Trustee . . . . . . . . . . . . . . . . 110
SECTION 8.11. Acceptance by Successor Trustee . . . . . . . . . . . . . . . . . 114
SECTION 8.12. Succession by Merger, Etc. . . . . . . . . . . . . . . . . . . . 117
SECTION 8.13. Limitation on Rights of Trustee as a
Creditor . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
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ARTICLE NINE
CONCERNING THE DEBT SECURITYHOLDERS.
SECTION 9.01. Action by Debt Securityholders . . . . . . . . . . . . . . . . . 127
SECTION 9.02. Proof of Execution by
Debt Securityholders . . . . . . . . . . . . . . . . . . . . . 128
SECTION 9.03. Who Deemed Absolute Owners . . . . . . . . . . . . . . . . . . . 128
SECTION 9.04. Company-Owned Debt Securities Disregarded . . . . . . . . . . . 129
SECTION 9.05. Revocation of Consents; Future
Holders Bound . . . . . . . . . . . . . . . . . . . . . . . . . 130
ARTICLE TEN
DEBT SECURITYHOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings . . . . . . . . . . . . . . . . . . . . . . 131
SECTION 10.02. Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . 132
SECTION 10.03. Call of Meetings by Company or
Debt Securityholders . . . . . . . . . . . . . . . . . . . . . 132
SECTION 10.04. Qualifications for Voting . . . . . . . . . . . . . . . . . . . 133
SECTION 10.05. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . 134
SECTION 10.06. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
ARTICLE ELEVEN
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures Without
Consent of Debt Securityholders . . . . . . . . . . . . . . . . 136
SECTION 11.02. Supplemental Indentures with Consent
of Debt Securityholders . . . . . . . . . . . . . . . . . . . 140
SECTION 11.03. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . 142
SECTION 11.04. Notation on Debt Securities . . . . . . . . . . . . . . . . . . . 142
SECTION 11.05. Evidence of Compliance of
Supplemental Indenture to Be
Furnished Trustee . . . . . . . . . . . . . . . . . . . . . . 143
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ARTICLE TWELVE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER.
SECTION 12.01. Company May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . 143
SECTION 12.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . 145
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE OF
INDENTURE OR CERTAIN COVENANTS.
SECTION 13.01. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
SECTION 13.02. Defeasance upon Deposit of Money,
U.S. Government Obligations or
Eligible Obligations . . . . . . . . . . . . . . . . . . . . . 148
SECTION 13.03. Deposited Money, U.S. Government
Obligations and Eligible
Obligations to Be Held in Trust by 151
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 13.04. Paying Agent to Repay Money Held . . . . . . . . . . . . . . . . 152
SECTION 13.05. Return of Unclaimed Amounts . . . . . . . . . . . . . . . . . . 152
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Debt Securities Solely
Corporate Obligations . . . . . . . . . . . . . . . . . . . . . 154
ARTICLE FIFTEEN
Miscellaneous Provisions
------------------------
SECTION 15.01. Provisions Binding on Company's
Successors . . . . . . . . . . . . . . . . . . . . . . . . . . 155
SECTION 15.02. Official Acts by Successor
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 155
SECTION 15.03. Addresses for Notices, Etc. . . . . . . . . . . . . . . . . . . 155
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SECTION 15.04. New York Contract . . . . . . . . . . . . . . . . . . . . . . . 156
SECTION 15.05. Evidence of Compliance with
Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 156
SECTION 15.06. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . 157
SECTION 15.07. Trust Indenture Act to Control . . . . . . . . . . . . . . . . . 158
SECTION 15.08. Debt Securities Controlling in the Event
of Inconsistencies Between
Indenture and Debt Securities . . . . . . . . . . . . . . . . . 158
SECTION 15.09. Table of Contents, Headings, Etc. . . . . . . . . . . . . . . . 158
SECTION 15.10. Execution in Counterparts . . . . . . . . . . . . . . . . . . . 158
ACCEPTANCE OF TRUST BY TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
11
THIS INDENTURE, dated as of [ ], 1995 from XXXXXX INDUSTRIES,
INC., a corporation duly organized and existing under the laws of the State of
Ohio (hereinafter called the "Company"), to TEXAS COMMERCE BANK National
Association, a national banking association existing under the laws of the
United States of America, as trustee (hereinafter called the "Trustee"),
WITNESSETH:
WHEREAS, the Company is empowered to borrow money for its corporate
purposes and to issue its debentures, notes, bonds or other evidences of
indebtedness (hereinafter called the "Debt Securities");
WHEREAS, the Company deems it necessary to issue from time to time for
its lawful purposes Debt Securities, unlimited as to principal amount, and has
duly authorized the execution and delivery of this Indenture to provide for the
issuance of the Debt Securities in one or more series, bearing such rates of
interest, if any, maturing at such time or times and having such other
provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Company by due corporate action has determined to execute
and deliver an indenture in the form of this Indenture, and all things
necessary to make this
12
Indenture a legal, valid, binding and enforceable agreement, have been done
and performed;
NOW, THEREFORE, THIS INDENTURE WITNESSETH that in consideration of the
premises and of the acceptance and purchase of the Debt Securities by the
holders thereof, the Company covenants and agrees with the Trustee, for the
benefit of all the present and future holders of the Debt Securities or series
thereof, as follows:
ARTICLE ONE
DEFINITIONS.
SECTION 1.01. DEFINITIONS. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939 or which are by reference therein defined in the Securities Act of 1933
(except as herein otherwise expressly provided or unless the context otherwise
requires) shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date this Indenture
is originally executed. All accounting terms used herein and not expressly
defined shall have the meanings assigned to
13
3
such terms in accordance with generally accepted accounting principles in the
United States of America at the time of determination of such terms.
Agent Member:
The term "Agent Member" shall have the meaning specified in Section
2.11.
Applicable Debt Securities:
The term "Applicable Debt Securities" shall have the meaning specified
in Section 7.01.
Attributable Debt:
The term "Attributable Debt" shall mean the present value (discounted
in accordance with a method of discounting which for financial reporting
purposes is consistent with generally accepted accounting principles) of the
rental payments during the remaining term of any Sale and Leaseback Transaction
for which the lessee is obligated (including any period for which such lease
has been extended), such rental payments not to 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 Sale and Leaseback Transaction which is terminable by the lessee upon the
payment of a penalty, such rental payments shall also
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4
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.
Board of Directors:
The term "Board of Directors" shall mean the Board of Directors of the
Company or any committee of such Board or any committee of officers of the
Company duly authorized to take any action hereunder.
Certified Resolutions or Board Resolutions:
The terms "Certified Resolutions" or "Board Resolutions" shall mean a
copy delivered to the Trustee of a resolution of the Board of Directors
certified by the Secretary or Assistant Secretary of the Company to have been
duly adopted and to be in full force and effect on the date of such
certification.
Company:
The term "Company" shall mean XXXXXX INDUSTRIES, INC., an Ohio
corporation, and, subject to the provisions of Article Twelve, shall mean its
successors and assigns.
Debt Security or Debt Securities; Outstanding:
The term "Debt Security" or "Debt Securities" shall mean any note or
notes, bond or bonds, debenture or debentures, or
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5
any other evidences of indebtedness, as the case may be, of any series
authenticated and delivered from time to time under this Indenture.
The term "outstanding" or "Outstanding", when used with reference to
Debt Securities, shall, subject to the provisions of Section 9.04, mean all
Debt Securities theretofore authenticated and delivered by the Trustee under
this Indenture, except:
(a) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or
redemption of which money 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 Debt Securities are to be redeemed
prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article Four, or provision satisfactory
to the Trustee shall have been made for giving such notice; and
(c) Debt Securities in lieu of or in exchange and
substitution for which other Debt Securities shall have been
authenticated and delivered, or which have been paid, pursuant to
the terms of Section 2.06.
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6
Debtholder or Holder:
The terms "Debtholder", "Holder", "holder of Debt Securities", or
other similar terms, shall mean any Person in whose name at the time a
particular Debt Security is registered on the register kept for that purpose in
accordance with the terms hereof.
Depositary:
The term "Depositary" shall have the meaning specified in Section 2.11.
Eligible Obligations:
The term "Eligible Obligations" shall mean obligations as a result of
the deposit of which (along with the simultaneous deposit, if any, of money
and/or U.S. Government Obligations) the relevant series of Debt Securities are
rated in the highest generic long-term debt rating category assigned to legally
defeased debt by one or more nationally recognized rating agencies.
Event of Default:
The term "Event of Default" shall have the meaning specified in
Section 7.01.
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7
Funded Debt:
The term "Funded Debt" shall mean (a) any Indebtedness maturing by its
terms more than one year from the date of the issuance thereof, including any
Indebtedness renewable or extendible at the option of the obliger to a date
later than one year from the date of the original issuance thereof, excluding
any portion of Indebtedness which is included in current liabilities and (b)
any Indebtedness which may be payable from the proceeds of Funded Debt as
defined in clause (a) of this definition pursuant to the terms of such Funded
Debt.
Global Debt Security:
The term "Global Debt Security" shall have the meaning specified in
Section 2.11.
Indebtedness:
The term "Indebtedness" of any corporation shall mean all indebtedness
for money borrowed which is created, assumed, incurred or guaranteed in any
manner by such corporation or for which such corporation is otherwise
responsible or liable.
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8
Indenture:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented.
Lien:
The term "Lien" shall mean any mortgage, pledge, security interest,
lien, charge or other encumbrance.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, the President, any Vice President or the Chief
Financial Officer, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee. Wherever this Indenture requires
that an Officers' Certificate be signed also by an accountant or other expert,
such accountant or other expert (except as otherwise expressly provided in this
Indenture) may be in the employ of the Company. Each such certificate shall
include the statements provided for in Section 15.05 if and to the extent
required by the provisions of such Section.
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9
Opinion of Counsel:
The term "Opinion of Counsel" shall mean a written opinion of counsel,
who may be an employee of or counsel to the Company. Each such opinion shall
include the statements provided for in Section 15.05 if and to the extent
required by the provisions of such Section.
Person:
The term "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Principal Office of the Trustee:
The term "principal office of the Trustee", or other similar term,
shall mean the principal office of the Trustee at which at any particular time
its corporate trust business shall be administered.
Principal Property:
The term "Principal Property" shall mean (A) any manufacturing plant
located in the continental United States, or manufacturing equipment located in
any such manufacturing plant (together with the land on which such plant is
erected and fixtures comprising a part thereof), owned or leased on the first
date on which a Debt Security is
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10
authenticated by the Trustee or thereafter acquired or leased by the Company or
any Restricted Subsidiary, other than (i) any property which the Board of
Directors determines is not of material importance to the total business
conducted, or assets owned, by the Company and its Subsidiaries, as an
entirety, or (ii) any portion of any such property which the Board of Directors
determines not to be of material importance to the use of operation of such
property and (B) any Shares or Indebtedness issued by any Restricted
Subsidiary. "Manufacturing plant" does not include any plant owned or leased
jointly or in common with one or more Persons other than the Company and its
Restricted Subsidiaries in which the aggregate interest of the Company and its
Restricted Subsidiaries does not exceed fifty percent (50%). "Manufacturing
equipment" means manufacturing equipment in such manufacturing plants used
directly in the production of the Company's or any Restricted Subsidiary's
products and does not include office equipment, computer equipment, rolling
stock and other equipment not directly used in the production of the Company's
or any Restricted Subsidiary's products.
Responsible Officer:
The term "Responsible Officer", when used with respect to the Trustee,
shall mean the chairman and any vice
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11
chairman of the board of directors, the chairman and any vice chairman of the
executive committee of the board of directors, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer, any assistant trust officer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom corporate trust matters are referred because of his
knowledge of and familiarity with the particular subject.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary
substantially all the property of which is located within the continental
United States, other than (i) a Subsidiary primarily engaged in financing,
including, without limitation, lending on the security of, purchasing or
discounting (with or without recourse) receivables, leases, obligations or
other claims arising from or in connection with the purchase or sale of
products or services, (ii) a Subsidiary primarily engaged in leasing or
insurance, or (iii) a Subsidiary primarily engaged in financing the Company's
or any Restricted Subsidiary's operations outside the continental United
States.
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12
Sale and Leaseback Transaction:
The term "Sale and Leaseback Transaction shall mean any arrangement
with any Person providing for the leasing by the Company or any Restricted
Subsidiary of any Principal Property of the Company or any Restricted
Subsidiary whether such Principal Property is now owned or hereafter acquired
(except for 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 and except for leases of property executed prior to, at the time
of, or within one year after the later of, the acquisition, the completion of
construction, including any improvements or alterations on real property, or
the commencement of commercial operation of such property), which Principal
Property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person.
Secured Indebtedness:
The term "Secured Indebtedness" of any corporation shall mean
Indebtedness secured by any Lien upon property (including Shares or
Indebtedness issued by any Restricted Subsidiary) owned by the Company or any
Restricted Subsidiary.
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13
Shareholders' Equity:
The term "Shareholders' Equity" shall mean the total assets calculated
from a consolidated balance sheet of the Company, prepared in accordance with
generally accepted accounting principles, less total liabilities shown on such
balance sheet.
Shares:
The term "Shares" shall mean as to any corporation all the issued and
outstanding equity shares (except for directors' qualifying shares) of such
corporation.
Subsidiary:
The term "Subsidiary" shall mean any corporation a majority of the
Voting Shares of which are at the time owned or controlled, directly or
indirectly, by the Company or by one or more Subsidiaries, or by the Company
and one or more Subsidiaries and which is consolidated in the Company's latest
consolidated financial statements filed with the Securities and Exchange
Commission or provided generally to the Company's shareholders.
Trustee:
The term "Trustee" shall mean Texas Commerce Bank National
Association, a national banking association, and,
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14
subject to the provisions of Article Eight hereof, shall mean its successors
and assigns as Trustee hereunder.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939 as it was in force at the date of execution of this Indenture,
except as provided in Article Eleven.
U.S. Government Obligations:
The term "U.S. Government Obligations" shall mean 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 timely payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case under clause (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 on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository
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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.
Voting Shares:
The term "Voting Shares" shall mean, as to Shares of a particular
corporation, outstanding Shares of any class of such corporation entitled to
vote in the election of directors, excluding Shares entitled so to vote only
upon the happening of some contingency.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND
EXCHANGE OF DEBT SECURITIES
SECTION 2.01. Issuable in Series; Unlimited Aggregate Principal
Amount. The aggregate principal amount of Debt Securities that may be issued by
the Company and authenticated and delivered under this Indenture is unlimited.
The Debt Securities may, at the election of and as authorized by the Board of
Directors to be evidenced by a Board Resolution, be issued in one or more
series, and shall be designated generally as debentures, notes, bonds and
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16
other evidences of indebtedness, as the case may be, with such further
particular designations added or incorporated in such title for the Debt
Securities of any particular series as the Board of Directors may determine as
provided in Section 2.02. Each Debt Security shall bear upon the face thereof
the designation so selected for the series to which it belongs and shall be
dated the date of its authentication. All Debt Securities of any one series
shall be substantially identical except as to denomination and except as may
otherwise be provided in the Certified Resolution or in an indenture
supplemental hereto provided to the Trustee pursuant to Section 2.02(A).
SECTION 2.02. Documents Required for Issuance of Each Series of Debt
Securities. At any time, and from time to time, after the execution of this
Indenture, Debt Securities of each of the series created pursuant to the
provisions hereof may be executed by the Company and delivered to the Trustee
and shall be authenticated by the Trustee and delivered to, or upon the order
of, the Company upon receipt by the Trustee of:
(A) a Certified Resolution, or an indenture supplemental hereto, setting forth
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17
(i) the following terms with respect to the
particular series of Debt Securities to be authenticated and
delivered by the Trustee:
(a) designation;
(b) date;
(c) date or dates of maturity; or the method
by which such date or dates to be determined;
(d) interest rate or rates or the method of
determining such rate or rates, if any, and
modifications to Section 2.10 hereof, if any;
(e) interest payment dates, if any;
(f) the place or places for the payment of
principal and for the payment of interest, if
any;
(g) denominations;
(h) limitation upon the aggregate principal
amount of Debt Securities of the particular series
which may be issued, if any (except for Debt
Securities issued pursuant to Sections 2.05, 2.06,
2.07 and 4.03); (i) provisions, if any, for the
payment of principal, premium or interest, without
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18
deduction for taxes, assessments or governmental
charges, or for reimbursement of taxes, assessments
or governmental charges in case of payment by the
holders;
(j) provisions, if any, reserving to the
Company the right, or obligating the Company at the
option of the holder thereof, to redeem all or any part
of the Debt Securities of the particular series before
maturity at such time or times, upon such notice, at
such redemption price or prices (together with accrued
interest to the date of redemption) and upon such other
terms (which terms may be in addition to, in
substitution for, in subtraction from or in
modification of (or any combination of the foregoing)
the provisions of this Indenture with respect to
redemption of Debt Securities) as may be specified in
the respective forms of Debt Securities;
(k) provisions, if any, for any sinking,
purchase or analogous fund with respect to the Debt
Securities of the particular series, which provisions
may be in addition to, in substitution for, in
subtraction from or in
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19
modification of (or any combination of the foregoing)
the provisions of this Indenture with respect to
sinking, purchase or analogous funds;
(l) provisions, if any, for the issuance of
Debt Securities bearing no interest rate or to be sold
at a premium or with an original issue discount and
provisions, if any, for the determination of the
portion or portions of any Debt Securities sold at a
discount that shall be required for any request,
demand, authorization, notice, direction, consent or
waiver;
(m) Events of Default with respect to the Debt
Securities of a particular series which Events of
Default may be in addition to, in substitution for, in
subtraction from or in modification of (or any
combination of the foregoing) the Events of Default
provided in Section 7.01, and the remedies with respect
thereto;
(n) provisions, if any, for the Debt Securities
of a particular series to be denominated, and payments
thereon to be made,
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20
in currencies other than the U.S. dollar or in units
based on or relating to such other currencies
(including European currency units);
(o) provisions, if any, for the defeasance of
Debt Securities of a particular series (including
provisions permitting defeasance of less than all Debt
Securities of a particular series), which provisions
may be in addition to, in substitution for, in
subtraction from, or in modification of (or any
combination of the foregoing) the provisions of Article
Thirteen;
(p) covenants, if any, with respect to the Debt
Securities of a particular series, which covenants may
be in addition to, in substitution for, in subtraction
from or modification of (or any combination of the
foregoing) the covenants set forth in Sections 5.05 and
5.06;
(q) whether the Debt Securities of a particular
series shall be issued in whole or in part in the form
of one or more Global Debt Securities and, in any such
case, (i) the
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Depositary for such Global Debt Security or Global Debt
Securities and (ii) the circumstances under which any
such Global Debt Security may be registered in the name
of, and under which any transfer of such Global Debt
Security may be registered in the name of, any Person
other than such Depositary or its nominee, if other
than as set forth in Section 2.11; and
(r) any other provisions expressing or
referring to the terms and conditions upon which the
Debt Securities of that series are to be issued under
this Indenture which are permitted to be set forth in a
Certified Resolution pursuant to this Section 2.02(a)
or an indenture supplement hereto or which are not in
conflict with the provisions of this Indenture; and
(ii) the form of such series of Debt Securities;
(B) an Officers' Certificate dated the date of authentication
and delivery of such series of Debt Securities stating that the
resolutions of the Board of Directors authorizing the execution,
authentication and delivery of this Indenture and the Debt
Securities are in full force and effect as of the date hereof;
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22
(C) either (i) a certificate or other official document
evidencing the due authorization, approval or consent of any
governmental body or bodies, at the time having jurisdiction in the
premises, together with an Opinion of Counsel that the Trustee is
entitled to rely thereon and that the authorization, approval or
consent of no other governmental body is required, or (ii) an
Opinion of Counsel that no authorization, approval or consent of
any government body is required;
(D) an Opinion of Counsel that all instruments furnished the
Trustee conform to the requirements of this Indenture and
constitute sufficient authority hereunder for the Trustee to
authenticate and deliver the Debt Securities then applied for; that
all conditions precedent provided for in this Indenture relating to
the authentication and delivery of the Debt Securities applied for
have been complied with and the Company is duly entitled to the
authentication and delivery of such Debt Securities in accordance
with the provisions of this Indenture; that all laws and
requirements with respect to the form and execution by the Company
of the supplemental indenture, if any, and the execution and
delivery by the Company of the Debt Securities then applied for
have been complied with; that the Company has
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23
corporate power to issue such Debt Securities and has duly taken all
necessary corporate action for those purposes; that the Debt
Securities then applied for, when issued, will be the legal, valid
and binding obligations of the Company; and that the Debt Securities
of the series then applied for, when issued, will be entitled to the
benefits of this Indenture, equally and ratably with all other
Debt Securities of such series theretofore issued and then
Outstanding;
(E) an Officer's Certificate stating that the Company is not in
default under the Indenture and that the issuance of the additional
Debt Securities applied for will not result in any breach of any of
the terms, conditions or provisions of, a constitute a default under,
the Company's articles of incorporation or code of regulations or any
indenture, mortgage, deed of trust or other agreement or instrument
to which the Company is a party or by which it is bound, or any order
of any court or administrative agency entered in any proceeding to
which the Company is a party or by which it may be bound or to which
it may be subject; and that all conditions precedent provided in this
Indenture relating to the authentication and delivery
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of the additional Debt Securities applied for having been complied
with; and
(F) a written order of the Company, signed by the President or
any Vice President and the Secretary or any Assistant Secretary of
the Company, directing the Trustee to authenticate and deliver Debt
Securities as provided therein. If all of the Debt Securities of a
series are not to be issued at one time and if the Certified
Resolution or indenture supplemental hereto establishing such
series shall so permit, an Officers' Certificate may set forth
procedures acceptable to the Trustee for the issuance of such Debt
Securities and determining the terms of particular Debt Securities
of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue.
If all Debt Securities of a series are not to be issued at any one
time, it shall not be necessary to deliver the Certified Resolution, Officers'
Certificates and Opinions of Counsel provided for in this Section 2.02 at the
time of issuance of each Debt Security of such series if instead such documents
are delivered at or prior to the time of issuance of the first Debt Security of
such series.
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SECTION 2.03. DENOMINATIONS; CERTIFICATE OF AUTHENTICATION. The Debt
Securities shall be issuable only as registered securities without coupons
(subject to Section 11.01(d)) in such denominations as shall be specified as
contemplated by Section 2.02, provided that in the absence of such
specifications with regard to any series of the Debt Securities, the Debt
Securities of such series shall be issuable in denominations of $1,000 or any
integral multiple thereof.
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26
The Trustee's certificate of authentication on all Debt Securities
shall be in substantially the following form:
This [note, bond, debenture or other evidence of indebtedness] is one
of the series of Debt Securities referred to in the within-mentioned Indenture.
TEXAS COMMERCE BANK
National Association,
as Trustee
By
---------------------
Authorized Signature
SECTION 2.04. EXECUTION OF DEBT SECURITIES. The Debt Securities
shall be signed manually or in facsimile in the name and on behalf of the
Company by the Chairman of the Board, the President, any Vice President, the
Chief Financial Officer or the Treasurer, under its corporate seal reproduced
thereon and attested manually or in facsimile by its Secretary or one of its
Assistant Secretaries. Only such Debt Securities as shall bear a certificate of
authentication substantially in the form provided in Section 2.03, executed
manually by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Debt Security executed by the Company shall be conclusive evidence that the
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Debt Security so authenticated has been duly authenticated and delivered
hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee, or disposed
of by the Company, such Debt Securities nevertheless may be authenticated
and delivered or disposed of as though the Person who signed such Debt
Securities had not ceased to be such officer of the Company; and any Debt
Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Debt Security, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
Person was not such an officer.
SECTION 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF DEBT
SECURITIES. Debt Securities may be exchanged for an equal aggregate principal
amount of Debt Securities of the same series and date of maturity of other
authorized denominations. Debt Securities to be exchanged shall be surrendered
at the office or agency to be maintained by the Company for such purpose in the
City and State of New York, as provided in Section 5.02, and the Company shall
execute, and the Trustee shall authenticate and deliver in exchange therefor,
the
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Debt Security or Debt Securities that the Debt Securityholder making the
exchange shall be entitled to receive.
The Company or any Debt Security registrar appointed by the Company
shall keep, at said office or agency, a register in which, subject to such
reasonable regulations as it may prescribe, the Company, or any Debt Security
registrar appointed by the Company, shall register Debt Securities and shall
register the transfer of Debt Securities as in this Article Two provided. Such
Debt Security register shall be in written form or in any other form capable of
being converted into written form within a reasonable time. If the Debt
Security register is not kept by the Trustee it shall at all reasonable times be
open for inspection by the Trustee. Upon due presentment for registration of
transfer of any Debt Security at such office or agency, the Company shall
execute, and the Trustee shall authenticate and deliver in the name of the
transferee or transferees, a new Debt Security or Debt Securities of the same
series and date of maturity for an equal aggregate principal amount. The
Company hereby appoints the Trustee to be Debt Security registrar, but reserves
the right to change the Debt Security registrar or to itself act as Debt
Security registrar.
All Debt Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Company or any Debt Security
registrar appointed by the Company)
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be duly endorsed, or be accompanied by a written instrument or instruments of
transfer (in form satisfactory to the Company or any Debt Security registrar
appointed by the Company) 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 of Debt Securities, but the Company or any Debt Security registrar
appointed by the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
The Company or any Debt Security registrar appointed by the Company
shall not be required to exchange or register the transfer of (a) any Debt
Securities for a period of fifteen days next preceding any selection of Debt
Securities to be redeemed, or (b) any Debt Securities selected, called or being
called for redemption.
SECTION 2.06. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES.
In case any temporary or definitive Debt Security shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
its request the Trustee shall authenticate and deliver, a new Debt Security of
the same series and date of maturity in the same principal amount, bearing a
number not contemporaneously
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30
outstanding, in exchange and substitution for the mutilated Debt Security, or
in lieu of and in substitution for the Debt Security so destroyed, lost or
stolen. In every case the applicant for a substituted Debt Security shall
furnish to the Company and to the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company
and to the Trustee evidence to their satisfaction of the destruction, loss or
theft of such Debt Security and of the ownership thereof.
The Trustee shall authenticate any such substituted Debt Security and
deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Debt Security, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. In case any
Debt Security which has matured or is about to mature shall become mutilated or
be destroyed, lost or stolen, the Company may, instead of issuing a substituted
Debt Security, pay or authorize the payment of the same (upon surrender thereof
in the case of a mutilated Debt Security) if the applicant for such payment
shall furnish to the Company and to the Trustee such security or indemnity as
may be required by them to save each of them harmless, and, in the
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case of destruction, loss or theft, evidence satisfactory to the Company and
the Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.06 by virtue of the fact that any Debt Security of
such series is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debt Security of such series 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 Debt Securities of such series duly issued hereunder. All
Debt Securities of any series shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities of such series and shall preclude any and all
other rights or remedies notwithstanding (to the extent permitted by applicable
law) 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 2.07. TEMPORARY DEBT SECURITIES. Pending the preparation of
definitive Debt Securities of any series, the
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Company may execute and the Trustee shall authenticate and deliver temporary
Debt Securities of such series (printed, lithographed or otherwise produced).
Temporary Debt Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Debt Securities, but with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Company and the Trustee. Every
such temporary Debt Security shall be authenticated by the Trustee upon the
same conditions, in substantially the same manner and with the same effect as
the definitive Debt Securities. Without unreasonable delay the Company will
cause to be prepared, and will execute and deliver to the Trustee, definitive
Debt Securities of such series, whereupon any or all temporary Debt Securities
of such series may be surrendered in exchange therefor at the office or agency
of the Company, and the Trustee shall authenticate and deliver in exchange for
such temporary Debt Securities an equal aggregate principal amount of
definitive Debt Securities of the same series and date of maturity. Such
exchange shall be made by the Company at its own expense and without any charge
therefor except that the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Until so exchanged, the temporary
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Debt Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Debt Securities of such series
authenticated and delivered hereunder.
SECTION 2.08. CANCELLATION OF DEBT SECURITIES PAID, ETC. All Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer, shall, if surrendered to the Company or any paying
agent or any Debt Security registrar, be surrendered to the Trustee for
cancellation and promptly cancelled by it, or, if surrendered to the Trustee,
shall be promptly cancelled by it, and no Debt Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee may destroy cancelled Debt Securities and deliver a
certificate of such destruction to the Company. If the Company shall acquire
any of the Debt Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the same are surrendered to the Trustee for
cancellation.
SECTION 2.09. DEBT SECURITIES TO BE TREATED EQUALLY. All Debt
Securities of each series issued under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such
series without
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preference, priority or distinction on account of the actual time or times of
the authentication and delivery of maturity of the Debt Securities of such
series.
SECTION 2.10. COMPUTATION OF INTEREST. Unless otherwise provided in
the Certified Resolution or one or more indentures supplemental hereto setting
forth the terms on any series of Debt Securities, interest on the Debt
Securities of such series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.11. GLOBAL DEBT SECURITIES; DEPOSITARY. For the purposes of
this Indenture, the term "Agent Member" shall mean a member of, or participant
in, a Depositary; the term "Depositary" shall mean, with respect to Debt
Securities issuable or issued in whole or in part in the form of one or more
Global Debt Securities, the clearing agency registered under the Securities
Exchange Act of 1934 designated as Depositary in a Certified Resolution, or in
an indenture supplemental hereto, pursuant to Section 2.02, and if at any time
there is more than one such agency, "Depositary" as used with respect to the
Debt Securities shall mean the respective Depositary with respect to a
particular series of Debt Securities; and the term "Global Debt Security"
shall mean a global certificate evidencing all or part of the series of Debt
Securities, executed by the Company, authenticated by the
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Trustee and issued to the Depositary for the series or such portion of the
series, and registered in the name of such Depositary or its nominee.
If a particular series of Debt Securities are to be issued in whole or
in part in the form of one or more Global Debt Securities, as specified in a
Certified Resolution, or in an indenture supplemental hereto, pursuant to
Section 2.02, then the Company shall execute and the Trustee shall, in
accordance with Section 2.03 with respect to such series, authenticate and
deliver each such Global Debt Security, which (i) shall represent and shall be
denominated in a principal amount equal to the aggregate principal amount of the
Debt Securities of such series to be represented by such Global Debt Security,
(ii) shall be registered in the name of the Depositary for such Global Debt
Security or its nominee, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instruction and (iv) unless
otherwise specified in such Certified Resolution or indenture supplemental
hereto, 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 MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
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Notwithstanding Section 2.05, except as otherwise specified in a
Certified Resolution, or in an indenture supplemental hereto, as contemplated by
Section 2.02, any Global Debt Security shall be exchangeable only as provided in
this paragraph. A Global Debt Security shall be exchangeable pursuant to this
Section if (x)(i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Debt Security or if at any time
the Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 and the (ii) Company is unable to arrange for a qualified
successor, (y) the Company in its sole discretion determines that all Global
Debt Securities of any series then outstanding shall be exchangeable for
definitive Debt Securities of such series in registered form or (z) an Event of
Default, or an event which, with the giving of notice or lapse of time, or both,
would constitute an Event of Default, with respect to the Debt Securities of the
series represented by such Global Debt Security has occurred and is
continuing. Any Global Debt Securities of such series that is exchangeable
pursuant to the preceding sentence shall be
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exchangeable for definitive Debt Securities of such series in registered form,
bearing interest (if any) at the same rate or pursuant to the same formula,
having the same date of issuance, redemption provisions, if any, currency of
payment, date of maturity and other terms and of differing denominations
aggregating a like amount. Such definitive Debt Securities of such series shall
be registered in the names of the owners of the beneficial interests in such
Global Debt Securities of such series as such names are from time to time
provided by the relevant participants in the Depositary holding such Global Debt
Securities (as such participants are identified from time to time by such
Depositary).
No Global Debt Security may be transferred except as a whole (i) by the
Depositary to a nominee of the Depositary or (ii) by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or (iii) by
the Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary. Except as provided above, owners solely of
beneficial interests in a Global Debt Security shall not be entitled to receive
physical delivery of Debt Securities of such series in definitive form and will
not be considered the Holders thereof for any purpose under this Indenture.
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In the event that a Global Debt Security is surrendered for redemption
in part pursuant to Article Three or Four, the Company shall execute, and the
Trustee shall authenticate and deliver to the Depositary for such Global Debt
Security, without service charge, a new Global Debt Security in a denomination
and tenor equal to and in exchange for the unredeemed portion of the principal
for the Global Debt Security so surrendered.
Neither the Company nor the Trustee nor any agent of the Company or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of any beneficial ownership
interest in any Global Debt Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest. The
Agent Members shall have no rights under this Indenture with respect to any
Global Debt Security held on their behalf by a Depositary, and such Depositary
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Debt Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
or
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impair, as between a Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of a Debt
Security of any series, including without limitation the granting of proxies or
other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under this Indenture.
ARTICLE THREE
SINKING FUNDS.
SECTION 3.01. Applicability of Article. The provisions of this
Article Three shall be applicable to any sinking fund established in or pursuant
to a Certified Resolution under Section 2.02 or one or more indentures
supplemental hereto for the retirement of Debt Securities of any series, except
as otherwise specified in such Certified Resolution or supplemental indenture.
The sinking fund payment required to be made under the terms
of the Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any sinking fund payment that is not required to be
made but is permitted by the terms of the Debt Securities of any series is
herein referred to as an "optional sinking fund payment". Unless otherwise
provided for by the terms of the Debt Securities
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of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 3.02. Each sinking fund payment shall be
applied to the redemption of the Debt Securities of any series as provided for
by the terms of the Debt Securities of such series.
SECTION 3.02. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT
SECURITIES. The Company may, at its option, as specified by it in an Officer's
Certificate delivered to the Trustee pursuant to Section 3.03 reduce and satisfy
the obligation to make a mandatory sinking fund payment in the amount of the
redemption price, together with accrued interest to the redemption date on Debt
Securities otherwise to be redeemed, of any Debt Securities (a) acquired by the
Company and delivered by it to the Trustee for cancellation or (b) redeemed
otherwise than through the operation of the mandatory sinking fund, and in each
case under clauses (a) and (b) delivered or redeemed on or prior to the date of
delivery of such Officers' Certificate and not theretofore made the basis for a
reduction of a mandatory sinking fund payment.
SECTION 3.03. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND. Not
less than sixty days prior to each sinking fund payment date for any series of
Debt Securities (or such later date as shall be satisfactory to the Trustee),
the Company
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will deliver to the Trustee an Officers' Certificate specifying the amount of
the next succeeding sinking fund payment for that series pursuant to the terms
of that series, the portion thereof, if any, which is to be satisfied by payment
of cash and the portion thereof, if any, which is to be satisfied by delivering
and crediting Debt Securities of that series pursuant to Section 3.02 and will
also deliver to the Trustee any Debt Securities to be so credited which have not
theretofore been delivered. Not less than thirty days before each such sinking
fund payment date, the Trustee shall select the Debt Securities of such series
to be redeemed upon such sinking fund payment date in the manner specified in
Article Four and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Article Four.
Such notice having been duly given, the redemption of such Debt Securities shall
be made upon the terms and in the manner stated in Article Four. In the case of
the failure of the Company to deliver such Officers' Certificate when due (or
to deliver the Debt Securities specified in this Section 3.03) the sinking fund
payment due on the next succeeding sinking fund payment date for that series
shall be paid entirely in cash and shall be sufficient to redeem the principal
amount of such Debt Securities subject to a mandatory sinking fund payment
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without the option to deliver or credit Debt Securities as provided in Section
3.02 and without the right to make any optional sinking fund payment with
respect to such series.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments
made in cash which shall equal or exceed $100,000 (or a lesser sum if the
Company shall so request) with respect to the Debt Securities of any particular
series shall be applied by the Trustee on the sinking fund payment date on which
such payment is made (or, if such payment is made before a sinking fund payment
date, on the sinking fund payment date next succeeding the date of such payment)
to the redemption of such Debt Securities at the redemption price specified in
such Debt Securities for operation of the sinking fund, together with accrued
interest, if any, to the date fixed for redemption. Subject to the provisions
of Section 13.05, any sinking fund payment not so applied or allocated by the
Trustee to the redemption of Debt Securities shall be added to the next cash
sinking fund payment received by the Trustee for such series and, together with
such payment, shall be applied in accordance with the provisions of this Section
3.03. Subject to the provisions of Section 13.05, any and all sinking fund
payments with respect to the Debt Securities of any particular series held by
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the Trustee on the last sinking fund payment date with respect to Debt
Securities of such series shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose, to the payment
of the principal of the Debt Securities of such series at maturity.
ARTICLE FOUR
REDEMPTION OF DEBENTURES.
SECTION 4.01. APPLICABILITY OF ARTICLE. The provisions of this
Article Four shall be applicable to any redemption provisions established in or
pursuant to a Certified Resolution under Section 2.02 or one or more indentures
supplemental hereto with respect to any series of Debt Securities, except as
otherwise provided in such Certified Resolution under Section 2.02 or
supplemental indenture.
SECTION 4.02. NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES.
In case the Company shall desire to exercise the right to redeem all, or, as the
case may be, any part of the Debt Securities of any series, as evidenced by a
Board Resolution, it shall fix a date for redemption and give notice of such
redemption by first class mail postage prepaid at least thirty and not more than
sixty days prior to the date fixed for redemption to the holders of Debt
Securities so to be redeemed as a whole or in part at their last addresses as
the same appear on the Debt Security register.
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The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Debt Security designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Debt Security.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which such Debt Securities are to be
redeemed, whether the redemption is through operation of a sinking, purchase or
analogous fund, the place of payment, that payment will be made upon
presentation and surrender of such Debt Securities, that interest accrued (if
any) to the date fixed for redemption will be paid as specified in said notice,
and that on and after said date interest thereon or on the portions thereof to
be redeemed will cease to accrue. If fewer than all the Debt Securities of a
series are to be redeemed, the notice of redemption shall specify the Debt
Securities to be redeemed. In case any Debt Security is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Debt Security, a new Debt Security or Debt
Securities of the same
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series, of authorized denominations, in principal amount equal to the
unredeemed portion thereof will be issued.
On or prior to the redemption date specified in the notice of redemption
given as provided in this Section 4.02, the Company will deposit with the
Trustee or with one or more paying agents (or, if the Company is acting as its
own paying agent, segregate and hold in trust as provided in Section 5.04) an
amount of money sufficient to redeem on the redemption date all the Debt
Securities so called for redemption at the applicable redemption price, together
with accrued interest (if any) to the date fixed for redemption.
If fewer than all the Debt Securities of a series are to be redeemed the
Company will give the Trustee notice not less than sixty days prior to the
redemption date as to the aggregate principal amount of Debt Securities of such
series to be redeemed and the Trustee shall select, in such manner as in its
sole discretion it shall deem appropriate and fair, the Debt Securities of such
series or portions thereof to be redeemed.
SECTION 4.03. PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as provided in Section 4.02, the Debt
Securities or portions of Debt Securities so to be redeemed shall become due and
payable on the date and at the place stated in such notice at the
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applicable redemption price, together with interest accrued (if any) to the date
fixed for redemption, and on and after said date (unless the Company shall
default in the payment of such Debt Securities at the redemption price, together
with interest accrued (if any) to said date) interest on such Debt Securities or
such portions of Debt Securities shall cease to accrue. Upon presentation and
surrender of such Debt Securities at the place of payment in said notice
specified, the said Debt Securities or the specified portions thereof shall
be paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon (if any) to the date fixed for redemption.
If any Debt Security or portion thereof called for redemption shall not
be so paid upon surrender thereof for redemption, the principal and premium, if
any, shall, until paid, bear interest from the date fixed for redemption at the
rate borne by such Debt Security or such portion thereof, or at such other rate
provided in the Certified Resolution relating to such Debt Security or the
supplemental indenture under which such Debt Security is issued. Upon
presentation and surrender of any Debt Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
holder thereof, at the expense of the Company, a new Debt Security or Debt
Securities of the same series,
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of authorized denominations, in principal amount equal to the unredeemed
portion of the Debt Security so presented and surrendered.
ARTICLE FIVE
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. With
respect to each series of Debt Securities, the Company covenants and agrees
that it will duly and punctually pay or cause to be paid the principal of,
premium, if any, and interest, if any, on the Debt Securities of such series at
the place, at the respective times and in the manner provided in the Debt
Securities of such series.
SECTION 5.02. OFFICE FOR NOTICES AND PAYMENTS, ETC. So long as any of
the Debt Securities remains outstanding, the Company will maintain in the City
and State of New York, an office or agency (which office or agency may differ
for different series of Debt Securities), initially to be located at the
principal office of the Trustee, where the Debt Securities may be presented and
surrendered for registration of transfer and for exchange as in this Indenture
provided, where notices and demands to or upon the Company in respect of Debt
Securities or of this Indenture may be served and where Debt Securities may be
presented and surrendered for payment, provided that the Company may maintain in
such City a
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separate office or agency for one or more of the foregoing purposes. The
Company will give to the Trustee written notice of the change in the location
of such office or agency. In case the Company shall fail to maintain any such
office or agency or shall fail to give such notice of the location or of any
change in the location thereof, presentations and surrenders may be made and
notices and demands may be served at the principal office of the Trustee.
SECTION 5.03. APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 5.04. PROVISION AS TO PAYING AGENT. (a) If the Company
shall appoint a paying agent other than the Trustee with respect to any series
of Debt Securities, it will cause such paying agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 5.04, that:
(1) it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, or interest, if any, on
the Debt Securities of such series
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(whether such sums have been paid to it by the Company or by any other
obligor on the Debt Securities of such series) in trust for the
benefit of the holders of the Debt Securities of such series; and
(2) it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities of such
series) to make any payment of the principal of, premium, if any, or
interest, if any, on any of the Debt Securities of such series when
the same shall be due and payable.
(b) If the Company shall act as its own paying agent with
respect to any series of Debt Securities, it will, on or before each due date
for the payment of the principal of, premium, if any, or interest, if any,
on any of the Debt Securities of a series, set aside, segregate and hold in
trust for the benefit of such holders of the Debt Securities of such series a
sum sufficient to pay such principal, premium, if any, or interest, if any, so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Company (or by any other obligor on such Debt Securities
of such series) to make any payment of the principal of, premium, if any, or
interest, if any, on any of the Debt Securities of such series when the same
shall become due and payable.
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(c) Anything in this Section 5.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture in accordance with Sections 13.01
and 13.02, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by it, or any paying agent hereunder, as required by this
Section 5.04, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 5.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this
Section 5.04 is subject to Sections 13.03 through 13.05.
(e) The Company hereby appoints the Trustee to act as paying
agent for all series of Debt Securities, but reserves the right to change the
paying agent or to itself act as paying agent.
SECTION 5.05. SECURED INDEBTEDNESS OF THE COMPANY AND RESTRICTED
SUBSIDIARIES. So long as any of the Debt Securities remains outstanding, the
Company will not, and the Company will not permit any Restricted Subsidiary to,
create, assume, guarantee or incur any Secured Indebtedness of the Company or
any Restricted Subsidiary without in any such case effectively providing
concurrently with the creation, assumption, guarantee or incurrence of any such
Secured
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Indebtedness that the Debt Securities (together with, if the Company shall so
determine, any other indebtedness of or guarantee by the Company or such
Restricted Subsidiary ranking equally with the Debt 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 Indebtedness but only for
so long and during such time as (i) such Secured Indebtedness shall exist and
be secured by a Lien and (ii) the aggregate of all Secured Indebtedness not
secured solely by Liens described in clauses (a) through (h) of this Section
5.05 and all Attributable Debt outstanding pursuant to, and not excluded from
this calculation by, Section 5.06, exceeds 10% of Shareholders' Equity;
PROVIDED, HOWEVER, that the foregoing restrictions shall not apply to Secured
Indebtedness secured by:
(a) Liens on property (including any Shares or Indebtedness)
of any corporation existing at the time such corporation becomes a
Restricted Subsidiary or arising thereafter pursuant to contractual
commitments entered into prior to and not in contemplation of such
corporation's becoming a Restricted Subsidiary;
(b) Liens on property (including any Shares or Indebtedness)
existing at the time of acquisition of
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such property by the Company or a Restricted Subsidiary, or Liens to
secure the payment of all or any part of the purchase price of such
property created upon the acquisition of such property by the Company
or a Restricted Subsidiary, or Liens to secure any Secured
Indebtedness incurred by the Company or a Restricted Subsidiary prior
to, at the time of, or within one year after the later of the
acquisition, the completion of construction (including any
improvements, alterations or repairs to existing property) or the
commencement of commercial operation of such property, which Secured
Indebtedness is incurred for the purpose of financing all or any part
of the purchase price thereof or construction or improvements,
alterations or repairs thereon; PROVIDED, HOWEVER, that in the case of
any such acquisition, construction or improvement, alteration or
repair, the Lien 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 theretofore unimproved real
property or portion thereof on which the property so constructed, or
the improvement, is located and any other property not then
constituting a Principal Property;
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(c) Liens securing Secured Indebtedness of any Restricted
Subsidiary owing to the Company or to another Restricted Subsidiary;
(d) Liens on property of a corporation existing at the time
such corporation is merged 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 as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary
or arising thereafter pursuant to contractual commitments entered into
by such corporation prior to and not in contemplation of such merger,
consolidation, sale, lease or other disposition;
(e) Liens on property of the Company or a Restricted
Subsidiary in favor of the United States of American 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 any trustee or mortgagee acting on behalf, or for the
benefit of, any of the foregoing, to secured partial, progress,
advance or other payments pursuant to any contract or statute
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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 Liens (including without limitation Liens
incurred in connection with pollution control, industrial revenue or
similar financings) and any other Liens incurred or assumed in
connection with the issuance of industrial revenue or private activity
bonds the interest on which is exempt from Federal income taxation
pursuant to Section 103(b) of the Internal Revenue Code of 1986, as
amended;
(f) Liens existing on the first date on which a Debt Security
is authenticated by the Trustee; (g) Liens on any property
(including any Shares or Indebtedness) not constituting a
Principal Property; (h) any extension, renewal or replacement
(or successive extensions, renewals or replacements) in whole
or in part of any Lien referred to in the foregoing clauses
(a) to (g), inclusive; PROVIDED, HOWEVER, that the principal
amount of Secured Indebtedness secured thereby shall not exceed
the principal amount of Secured Indebtedness secured thereby
at the time of such extension, renewal or replacement, and
that such extension, renewal or
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replacement shall be limited to all or a part of the property which
secured the Lien so extended, renewed or replaced (plus improvements,
alterations and repairs on or to such property) and any other
property not then constituting a Principal Property.
Notwithstanding the foregoing provisions, the Company and any one or
more Restricted Subsidiaries may create, assume, guarantee or incur Secured
Indebtedness which would otherwise be subject to the foregoing restrictions in
an aggregate amount which, together with (i) all other Secured Indebtedness of
the Company and its Restricted Subsidiaries which would otherwise be subject to
the foregoing restrictions (not including Secured Indebtedness secured by Liens
permitted under clauses (a) through (h) above) and (ii) all Attributable Debt
outstanding pursuant to, and not excluded from this calculation by, Section
5.06, does not at the time exceed 10% of Shareholders' Equity.
SECTION 5.06. SALE AND LEASEBACK TRANSACTIONS. The Company will not,
and will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transaction unless (A) the sum of (i) the Attributable Debt
outstanding pursuant to such Sale and Leaseback Transaction, (ii) all
Attributable Debt outstanding pursuant to all other Sale and Leaseback
Transactions entered into by the Company and any
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Restricted Subsidiary after the first date on which a Debt Security is
authenticated by the Trustee, and (iii) the aggregate of all Secured
Indebtedness outstanding (computed without regard to the Secured Indebtedness
excluded from the operation of Section 5.05 pursuant to clauses (a) through (h)
thereof and further without regard to Secured Indebtedness of the Company or
any Restricted Subsidiary if the Debt Securities are secured equally and ratably
with (or prior to) such Secured Indebtedness) does not exceed 10% of
Shareholders' Equity or (B) an amount equal to the greater of (i) the amount of
the net proceeds to the Company or the Restricted Subsidiary entering into such
Sale and Leaseback Transaction or (ii) the fair market value of such property,
as determined by the Board of Directors (in the case of (i) or (ii), after
repayment of, or otherwise taking into account, as the case may be, the amount
of any Secured Indebtedness secured by a Lien encumbering such property which
Secured Indebtedness existed immediately prior to such Sale and Leaseback
Transaction) is applied to retirement of Funded Debt within one year after the
consummation of such Sale and Leaseback Transaction; PROVIDED, HOWEVER, that
the covenant contained in this Section 5.06 shall not apply to, and there shall
be excluded from Attributable Debt in any computation under Section 5.05 or
this Section 5.06,
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Attributable Debt with respect to any Sale and Leaseback Transaction if:
(1) the Sale and Leaseback Transaction is entered into in
connection with the issuance of industrial revenue or private activity
bonds the interest on which is exempt from Federal income taxation
pursuant to Section 103(b) of the Internal Revenue Code of 1986, as
amended;
(2) the Company or a Restricted Subsidiary applies an amount
equal to the net proceeds (after repayment of any Secured Indebtedness
secured by a Lien encumbering such Principal Property which Secured
Indebtedness existed immediately before such Sale and Leaseback
Transaction) of the sale or transfer of the Principal Property leased
pursuant to such Sale and Leaseback Transaction to investment (whether
for acquisition, improvement, repair, alteration or construction
costs) in another Principal Property within one year prior or
subsequent to such sale or transfer;
(3) such Sale and Leaseback Transaction was entered into by a
corporation prior to the date on which such corporation became a
Restricted Subsidiary or arises thereafter pursuant to contractual
commitments entered into by such corporation prior to
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and not in contemplation of such corporation's becoming a Restricted
Subsidiary; or
(4) such Sale and Leaseback Transaction was entered into by a
corporation prior to the time such corporation was merged or
consolidated with the Company or a Restricted Subsidiary or prior to
the time of a sale, lease or other disposition of the properties of
such corporation as an entirety or substantially as an entirety to the
Company or a Restricted Subsidiary or arises thereafter pursuant to
contractual commitments entered into by such corporation prior to and
not in contemplation of such merger, consolidation, sale, lease or
other disposition.
SECTION 5.07. WAIVER OF COVENANTS. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Section 5.05 or 5.06 hereof or provided in a Certified Resolution delivered to
the Trustee pursuant to Section 2.02(A) hereof or in any indenture supplemental
hereto with respect to the Debt Securities of any series, if before or after
the time for such compliance the Holders of a majority in aggregate principal
amount of the Debt Securities of such series at the time Outstanding shall, by
action of such Debt Securityholders as provided in Section 9.01, either waive
such compliance in such instance or generally
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waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 5.08. CERTIFICATE TO TRUSTEE. The Company will deliver to
the Trustee within 120 days after the end of each fiscal year of the Company
(which on the date hereof ends on December 31) ending after the date any series
of Debt Securities is first issued hereunder, an Officers' Certificate (which
need not contain the statements provided for in Section 15.05), stating whether
or not to the best knowledge of the signer thereof the Company is in default in
the performance and observance of the terms, provisions and conditions of
Section 5.01, 5.02, 5.05 or 5.06 and any other covenant provided in a Certified
Resolution delivered to the Trustee pursuant to Section 2.02(A) hereof or an
indenture supplemental hereto, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge; PROVIDED, HOWEVER, that the Company shall not be obligated to
make any such statement with respect to any term, provision or condition
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specified in this Section 5.08 if such term, provision or condition, as the case
may be, is applicable only to a series of Debt Securities none of the Debt
Securities of which are outstanding or with respect to which series the Company
has been discharged pursuant to Article Thirteen.
ARTICLE SIX
DEBENTUREHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE.
SECTION 6.01. DEBT SECURITYHOLDERS' LISTS. The Company agrees that it
will furnish or cause to be furnished to the Trustee, semi-annually, not more
than fifteen days after each record date relating to any series of Debt
Securities, or if any series has no record date, not more than fifteen days
after January 1 and July 1 in each year, and at such other times as the Trustee
may request in writing within thirty days after receipt by the Company of any
such request, a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of the applicable series of Debt Securities,
as of a date not more than fifteen days prior to the time such information is
furnished; PROVIDED, HOWEVER, that so long as the Trustee shall be Debt
Security registrar for a series, no such list for a series need be furnished.
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SECTION 6.02. PRESERVATION AND DISCLOSURE OF LISTS. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Debt Securities
contained in the most recent list furnished to it as provided in Section 6.01
and received by the Trustee in its capacity as Debt Securities registrar. The
Trustee may destroy any list furnished to it as provided in Section 6.01 upon
receipt of a new list so furnished.
(b) In case three or more holders of Debt Securities of a
series (hereinafter referred to as "applicants") apply in writing to the
Trustee and furnish to the Trustee reasonable proof that each such applicant
has owned a Debt 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 Debt Securities of
such series with respect to their rights under this Indenture or under the Debt
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:
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(1) afford such applicants access to the information preserved
at the time of the Trustee in accordance with the provisions of
subsection (a) of this Section 6.02, or
(2) inform such applicants as to the approximate number of
holders of Debt 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 6.02,
and as to the approximate cost of mailing to such Debt Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each holder of Debt Securities of such series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 6.02 a copy of
the form of proxy or other communication which is specified in such request,
with reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the Trustee shall mail
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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 xxxx be contrary to
the best interests of the holders of Debt Securities of such series or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If said Commission, after opportunity for a hearing upon the
objections specified in the written 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 objections, said Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Debt Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of the Debt Securities, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee, nor any paying agent, nor any paying
agent, nor any Debt Security registrar shall be held accountable by reason of
the
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disclosure of any such information as to the names and addresses of the holders
of Debt Securities in accordance with the provisions of subsection (b) of this
Section 6.02, regardless of the source from which such formation was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
SECTION 6.03. REPORTS BY THE COMPANY. (a) The Company
agrees to file with the Trustee, within thirty days after the Company is
required to file the same with the Securities and Exchange Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with said Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of such Sections,
then to file with the Trustee and said Commission, in accordance with rules and
regulations prescribed from time to time by said Commission, such 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
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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 agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
(c) The Company agrees to transmit by mail to all holders of
Debt Securities, as the names and addresses of such holders appear upon the
Debt Security register, within thirty days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to
be filed by the Company pursuant to subsection (a) and (b) of this Section 6.03
as may be required by rules and regulations prescribed form time to time by the
Securities and Exchange Commission.
SECTION 6.04. REPORTS BY THE TRUSTEE. (a) On or before
October 15, 1990, and on or before October 15 in every year thereafter, so long
as any Debt Securities are outstanding hereunder, the Trustee shall transmit
to the
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Debt Securityholders, as hereinafter in this Section 6.04 provided, a brief
report dated as of the preceding August 15 with respect to:
(1) its eligibility under Section 8.09 and its qualification
under Section 8.08 or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified undersuch Sections, a written statement
to such effect;
(2) 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 Debt Securities on any property or funds
held or collected by it as Trustee, except that the Trustee
shall not be required (buy may elect to state such advances
if such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount of the Debt
Securities outstanding on the date of such report;
(3) the amount, interest rate, and maturity date of
all other indebtedness owing by the Company (or by any other obligor
on the Debt Securities) to the Trustee
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in its individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor,
except any indebtedness based upon a creditor relationship arising in
any manner described in Paragraph (2), (3), (4) or (6) or Subsection
(b) of Section 8.13;
(4) the property and funds, if any, physically in the
possession of the Trustee, as such, on the date of such
report;
(5) any additional issue of Debt Securities which the
Trustee has not previously reported; and
(6) any action taken by the Trustee in the
performance of its duties under this Indenture which it has
not previously reported and which in its opinion materially
affects the Debt Securities, except action in respect of a
default, notice of which has been or is to be withheld by it
in accordance with the provisions of Section 7.08.
(b) The Trustee shall transmit to the Debt Securityholder,
as hereinafter provided, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee
(as such), since the date of the last
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report transmitted pursuant to the provisions of subsection (a) of
this Section 6.04 (or, if no 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
Debt Securities 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 of
Debt Securities outstanding at such time, such report to be
transmitted within ninety days after such time.
(c) Reports pursuant to this Section 6.04 shall be
transmitted by mail to all Debt Securityholder as the names and
addresses of such Debt Securityholder appear upon the Debt Security
register.
(d) A copy of each such report shall, at the time of such
transmission to Debt Securityholder, be filed by the Trustee with each
stock exchange upon which the Debt Securities of any series are
listed and also with the Securities and Exchange Commission. The
Company will
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notify the Trustee when and as the Debt Securities of any series become
listed on any stock exchange.
ARTICLE SEVEN
Remedies of the Trustee and
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Debt Securityholder on Event of Default
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SECTION 7.01. EVENTS OF DEFAULT. "Event of Default" with
respect to any series of Debt Securities means each one of the event specified
below in this Section 7.01, unless it is either inapplicable to a particular
series or is specifically deleted or modified in the Certified Resolution under
which such series of Debt Securities is issued, and any other events as may
be specified in the Certified Resolution under Section 2.02 relating to such
series or any supplemental indenture under which such series of Debt Securities
is issued. In case one or more of the following Events of Default shall have
occurred and be continuing:
(a) default in the payment of any installment of interest upon
any of the Debt Securities of such series, as and when the same shall
become due and payable, and continuance of such default for a period
of thirty days; or
(b) default in the payment of the principal of or premium, if
any, on any of the Debt Securities of such series, as and when the same
shall become due and
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payable (subject to subsection (c) below) either at maturity, upon
redemption, by declaration or otherwise; or
(c) default in the making of any payment for a sinking,
purchase or analogous fund provided for in respect of any of the Debt
Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of thirty
days; or
(d) 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 respect of the Debt Securities of such series, or in this
Indenture contained with respect to such series, for a period of
ninety days after the date on which written notice of such failure,
requiring the Company to remedy the same, shall have been given to the
Company by the Trustee, or to the Company and the Trustee by the
holders of at least twenty-five percent in aggregate principal amount
of the Debt Securities of such series at the time Outstanding; or
(e) entry of a decree or order for relief in respect of the
Company by a court having jurisdiction in the premises in an
involuntary case under any
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applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator or other similar official of the
Company or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs and the continuance of such
decree or order unstayed and in effect for a period of ninety
consecutive days; or
(f) commencement by the Company of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent by the Company to the entry of an
order for relief in an involuntary case under any such law, or consent
by the Company to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Company or for any substantial part of
its property, or any general assignment by the Company for the benefit
of creditors, or failure by the Company generally to pay its debts as
they become due, or the taking by the Company of any corporate action
in furtherance of any of the foregoing;
the and in each and every such case in which an Event of Default shall have
occurred and shall be continuing, unless
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the principal of all of the Applicable Debt Securities (as hereinafter defined)
shall have already become due and payable, either the Trustee or the holders of
not less than twenty-five percent in aggregate principal amount of the
Applicable Debt Securities then Outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by holders of the Applicable Debt
Securities), may declare the principal of all the Applicable Debt Securities
(or such portion thereof as may be provided in the Certified Resolution under
Section 2.02 relating to such series or any supplemental indenture under which
such Applicable Debt Securities are issued) to be due and payable immediately
and upon any such declaration the same shall become and shall be immediately
due and payable, anything contained in the Indenture or in the Applicable Debt
Securities to the contrary notwithstanding. The term "Applicable Debt
Securities" shall mean the Debt Securities of a series with respect to which an
Event of Default shall have occurred and be continuing and unless otherwise
specifically provided with respect to a particular series of Debt Securities in
the Certified Resolutions under Section 2.02 relating to such series or any
indentures supplemental to this Indenture under which such series of Debt
Securities are issued shall refer to Debt Securities on a series by series
basis such that the provisions hereof shall be applied separately
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to each series of Debt Securities affected by such Event of Default. Any
declaration pursuant to this Section 7.01 is, however, subject to the condition
that if, at any time after the principal of the Applicable Debt Securities
shall have been so declared due and payable, and before any judgment or decree
for the payment of the money due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Applicable Debt Securities and the principal of and premium, if any, on any and
all Applicable Debt Securities which shall have become due otherwise than by
acceleration, with interest on overdue installments of interest (to the extent
that payment of such interest is enforceable under applicable law) and on such
principal and premium, if any, at the rate borne by the Applicable Debt
Securities, or at such other rate as may be provided in the Certified
Resolution under Section 2.02 relating to such series or any supplemental
indenture under which such Applicable Debt Securities are issued, to the date
of such payment or deposit, and all sums paid or advances made by the Trustee
hereunder and all amounts owing the Trustee under Section 8.06, and any and all
Events of Default under this Indenture with respect to the Applicable Debt
Securities, other than the nonpayment of principal of and accrued
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interest on Applicable Debt Securities which shall have become due by
acceleration, shall have been remedied, cured or waived, then and in every such
case the holders of a majority in aggregate principal amount of the Applicable
Debt Securities then Outstanding, by written notice to the Company and to the
Trustee, may waive all defaults related to such Applicable Debt Securities 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 of the Debt Securityholder 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 Debt Securityholder, then and in every such case the
Company and the Trustee and such Debt Securityholder shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee and such Debt Securityholder
shall continue as though no such proceedings had been taken.
SECTION 7.02. PAYMENT OF APPLICABLE DEBT SECURITIES ON
DEFAULT; SUIT THEREFOR. The Company covenants that (a) in
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case default shall be made in the payment of any installment of interest upon
any of the Applicable Debt Securities as and when the same shall become due and
payable, and such default shall have continued for a period of thirty days, or
(b) in case default shall be made in the payment of the principal of and
premium, if any, on any of the Applicable Debt Securities as and when the same
shall have become due and payable (subject to subsection (c) below), whether at
maturity of the Applicable Debt Securities or upon redemption or by declaration
or otherwise, or (c) in case default shall be made in the payment for any
sinking, purchase or analogous find provided for in respect of any of the
Applicable Debt Securities as and when the same shall become due and payable,
and such default shall have continued for a period of thirty days, then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Applicable Debt Securities, the whole amount that then shall
have become due and payable on all such Applicable Debt 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 at the rate borne by the Applicable Debt
Securities or at such other rate as may be provided in the Certified Resolution
under Section 2.02
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relating to such series or any supplemental indenture under which such
Applicable Debt Securities are issued; and, in addition thereto, such further
amount as shall be sufficient to cover all amounts owing the Trustee under
Section 8.06.
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 actions or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Applicable Debt Securities and collect in the manner provided by
law out of the property of the Company or any other obligor on the Applicable
Debt Securities wherever situated the money adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Debt
Securities under the Federal Bankruptcy Code or any other applicable law,
or in case a receiver or trustee shall have been appointed for the property of
the Company or such other obligor, or in the case of any similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities,
or to the creditors or property
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of the Company or such other obligor, the Trustee irrespective of whether the
principal of the Debt Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section
7.02, shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of
principal, premium and interest owing and unpaid in respect of the Debt
Securities, and to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any amounts owing the Trustee under Section 8.06) and of the holders
of Debt Securities allowed in such judicial proceedings relative to the Company
or any other obligor on the Debt Securities, its or their creditors, or its or
their property, and to collect and receive any money or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Debt Securities to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly to the Debt
Securityholder,
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to pay to the Trustee any amounts owing the Trustee under Section 8.06 up to
the date of such distribution.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities of any series, may be enforced by the Trustee
without the possession of any of the Debt Securities of such series, or the
production thereof on any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall be for
the ratable benefit of the holders of the Debt Securities of such series.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debt Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debt Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Debt Securityholder in any such
proceeding.
SECTION 7.03. APPLICATION OF MONEY COLLECTED BY TRUSTEE. Any money
collected by the Trustee pursuant to this Article with respect to a series of
Debt Securities shall be applied in the order following, at the date or dates
fixed by the Trustee for the distribution of such money, upon presentation of
the several Debt Securities of such series, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts owing the Trustee under
Section 8.06;
SECOND: In case the principal on none of the Outstanding
Debt Securities of such series shall have become due and be unpaid,
to the payment of interest, if any, which has become due and is
unpaid on the Debt Securities of such series, in the order of the
maturity of the installments of such interest, with interest (to the
extent permitted by applicable law and to the extent
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that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by the Debt Securities or at
such other rate as may be provided in the Certified Resolution under
Section 2.02 relating to such series or any supplemental indenture
under which such series of Debt Securities is issued (such payments
to be made ratably to the Persons entitled thereto);
THIRD: In case the principal of any of the Outstanding
Debt 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 Debt Securities of such series for principal, premium, if
any, and interest, if any, with interest on the overdue principal and
premium, if any, and (to the extent permitted by applicable law and to
the extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by the Debt
Securities of such series or at such other rate as may be provided
in the Certified Resolution under Section 2.02 relating to such series
or any supplemental indenture under which such series of Debt
Securities is issued; and in case such money shall be insufficient to
pay in full the whole amounts so due
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and unpaid upon the Debt Securities of such series, then to the
payment of such principal, premium, if any, and interest, if any,
without preference or priority of principal and premium, if any, over
interest, if any, or of interest over principal and premium, if any,
or of any installment of interest over any other installment of
interest, or of any Debt Security of such series over any other Debt
Security of such series, ratably to the aggregate of such principal,
premium, if any, and accrued and unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the
Company, its successors or assigns, or to whosoever may be lawfully
entitled to receive the same, or as a court of competent jurisdiction
may direct.
SECTION 7.04. PROCEEDINGS BY DEBT SECURITYHOLDERS. No
holder of any Applicable Debt Security of any series shall have any right by
virtue of or by availing himself of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, in each case with respect to an Event of
Default related to such Applicable Debt Securities, unless such holder
previously shall have given to the Trustee written notice of default with
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respect to the Applicable Debt Securities of such series and of the continuance
thereof, as hereinbefore provided, and unless also the holders of not less than
twenty-five percent in aggregate principal amount of such Applicable Debt
Securities then outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred therein or thereby, and the Trustee for
sixty days after its receipt of such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee during such sixty-day period by the holders of a majority in principal
amount of the outstanding Debt Securities, it being understood and intended,
and being expressly covenanted by the holder of every Debt Security of a series
with every other holder of a Debt Security of such series and the Trustee, that
no one or more holders of Debt Securities of such series shall have any right
in any manner whatever by virtue of or by availing himself or themselves of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of such Debt 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
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manner herein provided and for the equal, ratable and common benefit of all
holders of Debt Securities of such series.
Notwithstanding any other provisions in this Indenture, the right of
any holder of any Debt Security, which is absolute and unconditional, to
receive payment of the principal of, and premium, if any, and interest, if any,
on such Debt Security, on or after the respective due dates expressed in such
Debt Security, or to institute suit for the enforcement of any such payment on
or after such respective dates shall not be impaired or affected without the
consent of such holder.
SECTION 7.05. PROCEEDINGS BY TRUSTEE. In case an Event of Default
shall occur and be continuing hereunder with respect to any Applicable Debt
Securities, 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 by suit in equity or by action at law or by proceeding
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 with respect to such Applicable Debt
Securities, or to enforce any
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other legal or equitable right vested in the Trustee by this Indenture or by
law.
SECTION 7.06. REMEDIES CUMULATIVE AND CONTINUING. All powers
and remedies given this Article Seven to the Trustee or to the holders of
Debt Securities of any series 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 of the Debt Securities of such series,
by judicial proceedings or otherwise, to enforce the performance or observance
of the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any holder of any of the Debt Securities of a
series to exercise any right or power accruing upon any default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence therein; and,
subject to the provisions of Section 7.04, every power and remedy given by this
Article Seven or by law to the Trustee or to the Debt Securityholders of a
series may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Debt Securityholders of such series.
SECTION 7.07. DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS
BY MAJORITY OF DEBT SECURITYHOLDERS. The holders of
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a majority in aggregate principal amount of the Debt Securities of any series
at any time outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of such series; PROVIDED, HOWEVER, that (subject to the provisions
of Section 8.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors or trustees, executive committee, or a trust
committee of directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the Trustee in
personal liability or would be unduly prejudicial to the holders of Debt
Securities of such series not joining in such direction. Prior to any
declaration accelerating the maturity of the Debt Securities of any series, the
holders of a majority in aggregate principal amount of the Debt Securities of
such series at the time outstanding may, on behalf of the holders of all of the
Debt Securities of such series, waive any past default or Event of Default
hereunder with respect to such series and its consequences except a default in
the payment of the principal of, premium, if nay,
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or interest, if any, on any of the Debt Securities of such series, or in
respect of a covenant or provision hereof which under Article XI cannot be
modified or amended without the consent of the holder of each outstanding Debt
Security of such series affected. Upon any such waiver the Company, the
Trustee and the holders of the Debt Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such
waiver shall extend to any subsequent or other default (as defined in Section
7.08) or Event of Default or impair any right consequent thereon. Whenever any
default or Event of Default hereunder shall have been waived as permitted
by this Section 7.07, said default or Event of Default shall for all purposes
of the Debt Securities of such series and this Indenture be deemed to have been
cured and to be not continuing.
SECTION 7.08. NOTICE OF DEFAULTS. The Trustee shall, within
ninety days after the occurrence of a default (as hereinafter defined) with
respect to the Debt Securities of any series, mail to all holders of Debt
Securities of such series, as the names and addresses of such holders appear
upon the Debt Security register, notice of all such defaults known to the
Trustee, unless such default shall have been cured before the giving of such
notice (the term "default" for the purpose of this Section 7.08 being hereby
defined to
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be any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Debt Securities of such series); and
provided that, except in the case of default in the payment of the principal
of, premium, if any, or interest, if any, on any of the Debt Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors or trustees, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Debt Securityholders of such series.
SECTION 7.09. UNDERTAKING TO PAY COSTS. All parties to this
Indenture agree, and each holder of any Debt Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any part
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 7.09
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shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Debt Securityholder, or group of Debt Securityholders, holding in the
aggregate more than ten percent in principal amount of the Debt Securities of
any series outstanding, or to any suit instituted by any holder of a Debt
Security of any series for the enforcement of the payment of the principal of,
premium, if any, or interest, if any, on any Debt Security of such series on or
after the due date expressed in such Debt Security.
SECTION 7.10. 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 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.
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ARTICLE EIGHT
Concerning the Trustee
----------------------
SECTION 8.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The
Trustee prior to the occurrence of an Event of Default and after the curing of
all Events of Default which may have occurred and is continuing, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default of occurred and is continuing (which
has not been cured or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's 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 willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have
occurred:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee
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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, int he case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture; (b) the Trustee shall not be
liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
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(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the holders of not less than a majority in principal
amount of the Debt Securities of any series at the time Outstanding
determined as provided in Section 9.04 relating to the time, method,
and place of conducting any proceeding for any remedy available to the
Trustee with respect to the Debt Securities of such series, or
exercising any trust or power conferred upon the Trustee with respect
to the Debt Securities of such series under this Indenture; and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
SECTION 8.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as
otherwise provided in Section 8.01:
(a) the Trustee may rely and shall be protected in acting upon
any resolution, certificate, statement,
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instrument, opinion, report, notice, request, consent, order, bond,
debenture or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a Certified Resolution;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken 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 Debt Securityholders pursuant to the
provisions of this Indenture, unless such Debt Securityholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby;
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(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default with
respect to any series of Debt Securities hereunder and after the
curing or waiving of all Events of Default with respect to such series
of Debt Securities, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture or other paper or document with
respect to such series of Debt Securities, unless requested in writing
to do so by the holders of not less than a majority in principal
amount of Debt Securities of such 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, in the opinion of the Trustee,
not 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 expenses or liability as a condition to so
proceeding;
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(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder directly or by or through
agents or counsel, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or counsel appointed
with due care by it hereunder; and
(h) the Trustee shall not be deemed to have knowledge or
notice of any Event of Default or defaults hereunder unless a
Responsible Officer of the Trustee shall have actual knowledge thereof
or unless the holders of not less than twenty-five percent of the
outstanding Debt Securities of any series as to which there exists as
Event of Default or default gives notice of such Event of Default or
default.
SECTION 8.03. RESPONSIBILITY FOR RECITALS, ETC. The recitals
contained herein and in the Debt Securities (except in the Trustee's
certificate of authentication) shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities. The Trustee shall not be accountable for
the use or application by the Company of any Debt Securities or the proceeds
thereof.
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SECTION 8.04. TRUSTEE, PAYING AGENT OR DEBT SECURITY REGISTRAR
MAY OWN DEBT SECURITIES. The Trustee, any paying agent, Debt Security
registrar or any other agent of the Company in its individual or any other
capacity, may become the owner or pledgee of Debt Securities with the same
rights it would have if it were not Trustee, paying agent, Debt Security
registrar or such other agent.
SECTION 8.05. MONEY TO BE HELD IN TRUST. Subject to the
provisions of Section 13.04, all money received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
it was received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
SECTION 8.06. COMPENSATION AND EXPENSES OF TRUSTEE. The
Company agrees to pay to the Trustee from time to time, and the Trustee shall
be entitled to, reasonable compensation (which to the extent permitted by law
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and 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
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compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also agrees
to indemnity the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of
the Trustee and arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim of
liability in the premises. The obligations of the Company under this Section
8.06 to compensate the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Debt Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Debt Securities.
SECTION 8.07. OFFICERS' CERTIFICATE AS EVIDENCE. Except as
otherwise provided in Section 8.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable
that a matter
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be proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 8.08. CONFLICTING INTEREST OF TRUSTEE. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section 8.08, it shall, within ninety days after ascertaining that it has such
conflicting interest, either eliminate such conflicting interest or resign in
the manner and with the effect specified in Section 8.10.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section 8.08, the Trustee shall,
within ten days after the expiration of such ninety-day period, transmit notice
of such failure to all holders of Debt Securities, as the names and addresses of
such holders appear upon the Debt Security register.
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(c) For the purpose of this Section 8.08 the Trustee shall be
deemed to have a conflicting interest if:
(1) the Trustee is trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities, of the
Company, are outstanding, unless such other indenture is a
collateral trust indenture under which the only collateral
consists of Debt Securities issued under this Indenture;
provided that there shall be excluded from the operation of
this paragraph this Indenture in respect of all series of
Debt Securities issued hereunder, and any other indenture or
indentures under which other securities, or certificates of
interest or participation in other securities, of the Company
are outstanding if (i) this Indenture and such other
indenture or indentures are wholly unsecured and such other
indentures are hereafter qualified under the Trust Indenture
Act of 1939, unless the Securities and Exchange Commission
shall have
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found and declared by order pursuant to subsection (b) of Section 305
or subsection (c) of Section 307 of the Trust Indenture Act of 1939
that differences exist between the provisions of this Indenture and
the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture and
such other indenture or indentures, or (ii) the Company shall have
sustained the burden of proving, on application to the Securities and
Exchange Commission and after opportunity for hearing thereon, that
the trusteeship under this Indenture and such other indenture or
indentures is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as such under one
of such indentures;
(2) the Trustee or any of its directors or executive officers
is an obligor upon the
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Debt Securities of any series issued under this Indenture or
an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with the Company or an underwriter for
the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee, or representative of the Company, or of an
underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting,
except that (A) one individual may be a director and/or an
executive officer of the Trustee and a director and/or an
executive officer of the Company, but may not be at the same
time an executive officer of both the Trustee and the Company;
(B) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be
a director and/or an executive officer of the Trustee and a
director of the Company; and (C) the Trustee may be designated
by the Company or by any underwriter for the Company
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to act in the capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent, or depositary, or in any other
similar capacity, or, subject tot he provisions of paragraph (1) of
this subsection (c), to act as trustee whether under an indenture or
otherwise;
(5) ten percent or more of the voting securities of
the Trustee is beneficially owned either by the Company or by
any director, partner, or executive officer thereof, or twenty
percent or more of such voting securities is beneficially
owned, collectively, by any two or more of such Persons; or
ten percent or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Company or
by any director, partner, or executive officer thereof, or is
beneficially owned, collectively, by any two or more such
Persons;
(6) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default,
(A) five percent or more of the voting securities, or ten
percent or more of any other class of security, of the
Company, not including the Debt Securities issued under this
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Indenture and securities issued under any other indenture
under which the Trustee is also trustee, or (B) ten percent
or more of any class of security of an underwriter for the
Company;
(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default,
five percent or more of the voting securities of any Person
who, to the knowledge of the Trustee, owns ten percent or more
of the voting securities of, or controls directly or
indirectly or is under direct or indirect common control with,
the Company;
(8) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in default,
ten percent or more of any class of security of any Person
who, to the knowledge of the Trustee, owns fifty percent or
more of the voting securities of the Company; or
(9) the Trustee owns on May 15 in any calendar year,
in the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or conservator, or in
any other similar capacity, an aggregate of twenty-five
percent or more of the voting
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securities, or of any class of security, of any Person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this
subsection (c). As to any such securities of which the Trustee
acquired ownership through becoming executor, administrator or
testamentary trustee of an estate which included them, the provisions
of the preceding sentence shall not apply, for a period of two years
from the date of such acquisition, to the extent that such securities
included in such estate do not exceed twenty-five percent of such
voting securities or twenty-five percent of any such class of
security. Promptly after May 15, in each calendar year, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such May 15. If the Company fails to
make payment in full of principal of or the premium, if any, or
interest, if any, on any of the Debt Securities when and as the same
becomes due and payable, and such failure continues for thirty days
thereafter, the Trustee shall make a prompt check of its holdings of
such
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securities in any of the above-mentioned capacities as of
the date of the expiration of such thirty-day period and,
after such date, notwithstanding the foregoing provisions of
this paragraph (9), all such securities so held by the
Trustee, with sole or joint control over such securities
vested in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraph (6), (7) and (8) of
this subsection (c).
The specifications of percentages in paragraphs (5) to (9),
inclusive, of this subsection (c) shall not be construed as indicating that the
ownership of such percentages of the securities of a Person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection (c).
For the purposes of paragraph (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay money lent to a Person by
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one or more banks, trust companies or banking firms, or any certificate of
interest or participation in any such note or evidence of indebtedness; (B) an
obligation shall be deemed to be in default when a default in payment of
principal shall have continued for thirty days or more and shall not have been
cured; and (C) the Trustee shall not be deemed to be the owner or holder of (i)
any security which it holds as collateral security (as trustee or otherwise)
for an obligation which is not in default as defined in clause (B) above, or
(ii) any security which it holds as collateral security under this Indenture,
irrespective of any default hereunder, or (iii) any security which it holds as
agent for collection, or as custodian, escrow agent, or depositary, or in any
similar representative capacity.
Except as provided in the next preceding paragraph hereof, the
word "security" or "securities" as used in this Indenture shall mean any note,
stock, treasury stock, bond, debenture, evidence of indebtedness, certificate
of interest or participation in any profit-sharing agreement, collateral-trust
certificate pre-organization certificate or subscription, transferable share,
investment contract, voting-trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas or other mineral rights,
or, in general, any interest or instrument
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commonly known as a "security" or any certificate of interest or participation
in, temporary or interim certificate for, receipt for, guarantee of, or warrant
or right to subscribe to or purchase, any of the foregoing.
(d) For the purposes of this Section 8.08:
(1) The term "underwriter" when used with reference
to the Company shall mean every Person who, within three years
prior to the time as of which the determination is made, has
purchased form the Company with a view to, or has offered or
sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in
any such undertaking, or has participated or has had a
participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a Person
whose interest was limited to a commission from an underwriter
or dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions
with respect to any
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organization whether incorporated or unincorporated.
(3) The term "Person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization, or a
government or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust where
the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" shall mean any
security presently entitling the owner or holder thereof to
vote in the direction or management of the affairs of a
Person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or
agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of
the affairs of a Person.
(5) The term "Company" shall mean any obligor upon
the Debt Securities.
(6) The term "executive officer" shall mean the
president, every vice president, every trust
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officer, the cashier, the secretary, and the treasurer of a
corporation, and any individual customarily performing similar
functions with respect to any organization whether
incorporated or unincorporated, but shall not include the
chairman of the board of directors.
The percentages of voting securities and other securities
specified in this Section 8.08 shall be calculated in accordance with the
following provisions:
(A) A specified percentage of the voting securities
of the Trustee, the Company or any other Person referred to in
this Section 8.08 (each of whom is referred to as a "Person"
in this paragraph) means such amount of the outstanding voting
securities of such Person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting
securities of such Person are entitled to cast in the
direction or management of the affairs of such Person.
(B) A specified percentage of a class of securities
of a Person means such percentage of
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the aggregate amount of securities of the class outstanding.
(C) The term "amount", when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if relating to
capital shares, and the number of units if relating to any
other kind of security.
(D) The term "outstanding" means issued and not held
by or for the account of the issuer. The following securities
shall not be deemed outstanding within the meaning of this
definition:
(i) Securities of an issuer held in a sinking
fund relating to securities of the issuer of the same
class;
(ii) Securities of an issuer held in a sinking
fund relating to another class of securities of the
issuer, if the obligation evidence by such other
class of securities is not in default as to principal
or interest or otherwise;
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in
default as to principal or interest or otherwise;
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(iv) Securities held in escrow if placed in
escrow by the issuer thereof; PROVIDED, HOWEVER, that any
voting securities of an issuer shall be deemed outstanding if
any Person other than the issuer is entitled to exercise the
voting rights thereof.
(E) A security shall be deemed to be of the same
class as another security if both securities confer upon the
holder or holders thereof substantially the same rights and
privileges; PROVIDED, HOWEVER, that, in the case of secured
evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes, and
PROVIDED, FURTHER, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity
dates thereof shall not be deemed sufficient to constitute
them securities of different classes, whether or not they are
issued under a single indenture.
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SECTION 8.09. ELIGIBILITY OF TRUSTEE. The Trustee hereunder
shall at all times be a corporation organized and doing business under the laws
of the United States or any State or Territory thereof or of the District of
Columbia authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least five million dollars, subject to
supervision or examination by Federal, State, Territorial, 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 8.09,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 8.09. the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.10.
SECTION 8.10. RESIGNATION OR REMOVAL OF TRUSTEE. (a) The
Trustee may at any time resign with respect to the Debt Securities of one or
more series by giving written notice of such resignation to the Company. Upon
receiving such notice of resignation, the Company shall promptly appoint a
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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 shall have been so appointed and have accepted appointment within sixty
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction or the appointment of a successor
Trustee, or any holder of a Debt Security of such series who has been a bona
fide holder of a Debt Security or Debt Securities of such series for at least
six months may, subject to the provisions of Section 7.09, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor Trustee. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of subsection (a) of Section 8.08 after written
request therefor by the Company or by any Debt Securityholder
who has been a bona fide holder of a Debt Security or Debt
Securities 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 8.09 and shall fail
to resign after written request therefor by the Company or by
any such Debt Securityholder, 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
its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then in any such case, the Company may remove the Trustee and appoint a
successor Trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee, or, subject to the
provisions of Section 7.09, any Debt Securityholder who has been a bona fide
holder of a Debt Security or Debt Securities 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. Such court may, thereupon, after such notice, if any, as it
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may deem proper and prescribe, remove the Trustee and appoint a successor
Trustee.
(c) The holders of a majority in aggregate principal amount of
the Debt Securities of a series at the time Outstanding may at any time remove
the Trustee as to that series and appoint a successor Trustee as to that series.
(d) Any resignation or removal of the Trustee and any
appointment of a successor Trustee pursuant to any of the provisions of this
Section 8.10 shall become effective upon acceptance of appointment by the
successor Trustee as provided in Section 8.11.
(e) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid to the
holders of Debt Securities as their names and addresses appear in the register.
Each such notice shall include the name of the successor Trustee and the
address of its principal corporate trust office. If the Company fails to give
such notice within ten days after acceptance of appointment by the successor
Trustee, the successor Trustee shall cause such notice to be given, at the
expense of the Company.
SECTION 8.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any
successor Trustee appointed as provided in Section 8.10
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shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but nevertheless, on the written request of the Company or of the
successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 8.06, execute and
deliver an instrument transferring to such successor Trustee all the rights and
powers of the Trustee so ceasing to act. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in writing in order
more fully and certainly to vest in and confirm to such successor Trustee all
such rights and powers. Any Trustee ceasing to act shall, nevertheless, retain
a lien upon all property or funds held or collected by such Trustee to secure
any amounts then due it pursuant to the provisions of Section 8.06.
No successor Trustee shall accept appointment as provided in
this Section 8.11 unless at the time of such
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acceptance such successor Trustee shall be qualified under the provisions of
Section 8.08 and eligible under the provisions of Section 8.09.
In case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Debt Securities of one or more series shall execute and deliver an indentures
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Debt Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Debt Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
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the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee (subject
to the provisions of Section 8.06) shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Debt Securities of that or those series to which
the appointment of such successor Trustee relates, and upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and
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confirming to such successor trustee all rights, powers and trusts referred to
in this subsection.
SECTION 8.12. SUCCESSION BY MERGER, ETC. 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 of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing
of any paper or any further act on the part of any of the parties hereto.
In case at the time such successor Trustee shall succeed to
the trusts created by this Indenture with respect to one or more series of Debt
Securities, any of such Debt Securities shall have been authenticated but not
delivered, any such successor Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder 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 Debt Securities or in this Indenture
provided that the
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certificate of the Trustee shall have; PROVIDED, HOWEVER, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Debt Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 8.13. LIMITATION ON RIGHTS OF TRUSTEE AS A CREDITOR. (a)
Subject to the provisions of subsection (b) of this Section 8.13, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the company or of any other obligor on the Debt Securities within
four months prior to 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 Debt Securities, and the holders
of other indenture securities (as defined in paragraph (2) of subsection (c) of
this Section 8.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such four-month period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or
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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 four-month period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in
cash, securities, or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganization
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pursuant to the Federal Bankruptcy Code or applicable state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such four-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such four-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
8.13, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such four-month
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period for property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same status as
the property released, and, to the extent that any claim referred to in any of
such paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned among the Trustee, the Debt Securityholders and the holders of other
indenture securities in such manner that the Trustee, the Debt Securityholders
and the holders of other indenture securities realize, as a result of payments
form such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable state law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee, the Debt Securityholders, and the holders
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of other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal bankruptcy Code or applicable state law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than form such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to
any claim, the term "dividends" shall include any distribution with respect to
such claim, in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Code or applicable state law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership, or proceeding
for reorganization is pending shall have jurisdiction (i) to apportion among
the Trustee, the Debt Securityholders and the holders of other 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
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determining the fairness of the distributions to be made to the Trustee, the
Debt Securityholders 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 four-month 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 four-month
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 four-month
period; and
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(ii) such receipt of property or reduction of claim occurred
within four months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
this Section 8.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
debentureholders at the time and in the manner provided in Section
6.04 with respect to reports pursuant to subsections (a) and (b)
thereof, respectively;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture,
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transfer agent, registrar, custodian, paying agent, fiscal agent or
depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods
or securities sold in a cash transaction as defined in subsection (c)
of this Section 8.13; (5) the ownership of stock or of other
securities of a corporation organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or (6) the acquisition,
ownership, acceptance or negotiation of any drafts, bills of
exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c)
of this Section 8.13.
(c) As used in this Section 8.13:
(1) the term "default" shall mean any failure to make payment
in full of the principal of, premium, if any, or interest, if any,
upon any of the Debt Securities or upon the other indenture
securities when and as such principal or interest becomes due and
payable;
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(2) the term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the
Trustee 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 8.13 and (C) under which a default exists at the time
of the apportionment of the funds and property held in such special
account;
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand;
(4) the term "self-liquidating paper" shall mean any draft,
xxxx of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing
title to, possession of, or a lien upon, the goods, wares or
merchandise and which is secured by documents evidencing title to,
possession
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of, or a lien upon, the goods, wares or merchandise or the receivables
or proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security; provided that the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the company arising from the making,
drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation;
(5) the term "Company" shall mean any obligor upon the
Debt Securities.
ARTICLE NINE
Concerning the Debt Securityholders
-----------------------------------
SECTION 9.01. ACTION BY DEBT SECURITYHOLDERS. Whenever in
this Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Debt Securities of any series may take any
action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Debt Securityholders in person or
by agent or proxy appointed in writing, or (b) by the record of the holders of
such
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Debt Securities voting in favor thereof at any meeting of such Debt
Securityholders duly called and held in accordance with the provisions of
Article Ten, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of such Debt Securityholders.
SECTION 9.02. PROOF OF EXECUTION BY DEBT SECURITYHOLDERS.
Subject to the provisions of Sections 8.01, 8.02 and 10.05, proof of the
execution of any instrument by a Debt Securityholder or his agent or proxy
shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Debt Securities shall be proved
by the Debt Security register or by a certificate of the Debt Security
registrar.
The record of any Debt Securityholders' meeting shall be
proved in the manner provided in Section 10.06.
SECTION 9.03. WHO DEEMED ABSOLUTE OWNERS. Prior to due
presentment for registration of transfer of any Debt Security, the Company, the
Trustee, or the paying agent and any Debt Security registrar may deem the
Person in whose name any Debt Securities shall be registered upon the Debt
Security register to be, and may treat him as, the absolute owner of such Debt
Security (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or
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other writing on such Debt Security) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and interest, if any, on such
Debt Security and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Debt Security registrar shall be affected
by any notice to the contrary. All such payments so made to any registered
holder for the time being, or upon his order shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for money payable upon any such Debt Security.
SECTION 9.04. COMPANY-OWNED DEBT SECURITIES DISREGARDED. In
determining whether the holders of the requisite aggregate principal amount of
Debt Securities have concurred in any request, demand, authorization, notice,
direction, consent or waiver under the Indenture, Debt Securities which are
owned by the Company or any other obligor on the Debt Securities 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 Debt
Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request,
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demand, authorization, notice, direction, consent or waiver, only Debt
Securities which the Trustee knows are so owned shall be so disregarded. Debt
Securities so owned which have bene pledged in good faith may be regarded as
outstanding for the purposes of this Section 9.04 if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Debt Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. 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 to the Trustee.
SECTION 9.05. REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND.
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 9.01, of the taking of any action by the holders of the percentage
in aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action, any holder of a Debt Security
the serial number of which is shown by the evidence to be included in such Debt
Securities the holders of which have consented to such action may, by filing
written notice of the Trustee at its principal office and upon proof of holding
as provided in Section 9.02, revoke such action so far as concerns such Debt
Security.
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Except as aforesaid any such action taken by the holder of any Debt Security of
any series shall be conclusive and binding upon such holder and upon all future
holders and owners of such Debt Security and of any Debt Security issued in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon such Debt Security.
ARTICLE TEN
Debt Securityholders' Meetings
------------------------------
SECTION 10.01. PURPOSES OF MEETINGS. A meeting of Debt
Securities may be called at any time and from time to time pursuant to the
provisions of this Article Ten for any of the following purposes:
(1) to give any notice of the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of
any default hereunder and its consequences, or to take any other
action authorized to be taken by Debt Securityholders pursuant to any
of the provisions of Article Seven;
(2) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
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(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of
the Debt Securities under any other provision of this Indenture or
under applicable law.
SECTION 10.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may
at any time call a meeting of Debt Securityholders to take any action specified
in Section 10.01, to be held at such time and at such place in the City and
State of New York or in the City of Houston, Texas, as the Trustee shall
determine. Notice of every meeting of the Debt Securityholders, setting forth
the time and place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to holders of Debt Securities of all
series that may be affected by the action proposed to be taken at the meeting
at their addresses as they shall appear on the Debt Security register. Such
notice shall be mailed not less than twenty nor more than ninety days prior to
the date fixed for the meeting.
SECTION 10.03. CALL OF MEETINGS BY COMPANY OR DEBT
SECURITYHOLDERS. In case at any time the Company, pursuant to a resolution of
its Board of Directors, or the holders of at least ten percent in aggregate
principal amount of the Debt Securities then outstanding of all series that may
be
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affected by the action proposed to be taken at the meeting, shall have
requested the Trustee to call a meeting of Debt Securityholders of all series
that may be so affected by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within twenty days after receipt of such
request, then the Company or such Debt Securityholders may determine the time
and the place in New York, New York, or in Houston, Texas for such meeting and
may call such meeting to take any action authorized in Section 10.01, by
mailing notice thereof as provided in Section 10.02.
SECTION 10.04. QUALIFICATIONS FOR VOTING. To be entitled to
vote at any meeting of Debt Securityholders a Person shall (a) be a holder of
one or more Debt Securities of a series affected by the action proposed to be
taken at the meeting or (b) be a Person appointed by an instrument in writing
as a proxy by a holder of one or more such Debt Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of Debt
Securityholders 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 10.05. REGULATIONS. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Debt Securityholders, in regard to
proof of the holding of Debt Securities and of the appointment of proxies, and
in regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right
to vote, and such other matters concerning the conduct of the meeting as it
shall deem fit.
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 Debt Securityholders as provided in Section 10.03, in which
case the Company or the Debt Securityholders calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by a
majority vote of the meeting.
Subject to the provisions of Section 9.04, at any meeting each
Debt Securityholder of a series or proxy shall be entitled to one vote for each
$1,000 principal amount (or corresponding denomination if the Debt Securities
are not in U.S. dollars) (or such other principal amount equal to the
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authorized minimum denomination) of Debt 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 Debt Security challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Debt Securities
of such series held by him or instruments in writings as aforesaid duly
designating him as the Person to vote on behalf of other Debt Securityholders
of such series. Any meeting of Debt Securityholders duly called pursuant to
the provisions of Section 10.02 or 10.03 may be adjourned from time to time by
a majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
SECTION 10.06. VOTING. The vote upon any resolution
submitted to any meeting of Debt Securityholders of a series or all series to be
affected thereby, as the case may be, shall be by written ballots on which
shall be subscribed the signatures of the holders of Debt Securities of such
series or of their representatives by proxy and the serial number or numbers
of the Debt Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
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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 Debt Securityholders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 10.02. The record shall show the
serial numbers of the Debt Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved
by the Trustee.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE ELEVEN
Supplemental Indentures
-----------------------
SECTION 11.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
DEBT SECURITYHOLDERS. The Company, when authorized by the resolutions of the
Board of Directors, and the Trustee may from time to time and at any time
enter into an
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indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Article Twelve hereof;
(b) to add to the covenants of the Company such further Events
of Default, covenants, restrictions or conditions, for the protection
of the holders of the Debt Securities of any series as the Board of
Directors of the Company shall consider to be for the protection of
the holders of Debt Securities of such series, and to make the
occurrence or the occurrence and continuance of an Event of
Default or a default in any of such additional covenants, restrictions
or conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; PROVIDED, HOWEVER, that in respect of
any such additional Event of Default, covenant, restriction or
condition 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
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provide for an immediate enforcement upon such default or Event of
Default or may limit the remedies available to the Trustee upon such
default or Event of Default;
(c) to cure an ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture or
Debt Securities of a series which may be defective or inconsistent
with any other provision contained herein or in any supplemental
indenture or Debt Securities of a series, or to make such other
provisions in regard to matters or questions arising under this
Indenture or any supplemental indenture or Debt Securities of a series
which shall not adversely affect the interests of the holders of the
Debt Securities;
(d) to provide for the issuance of a particular series of
Debt Securities in bearer form with or without interest coupons;
(e) to provide for beneficial ownership of all or a portion of
a particular series of Debt Securities to be evidenced by electronic
book-entry (i) at a Depositary, (ii) on the records of the Company,
its agent or a third party other than a Depositary, with the Company,
its agent or a third party holding a certificate or certificates
representing such Debt Securities or portion
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thereof, or (iii) any combination of (i) and (ii); provision may be
made that beneficial owners shall not have the right to obtain
certificates for such Debt Securities or portion thereof;
(f) at the Company's option, to set forth some or all the
terms of the Debt Securities of a particular series in lieu of setting
forth such terms in a Certified Resolution pursuant to Section 2.02;
(g) to provide for the appointment of a successor Trustee with
respect to one or more series of Debt Securities pursuant to Section
8.11; or
(h) to provide for an authenticating agent for the Trustee.
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 and assignment of any property thereunder, but
the Trustee shall not be obligated to, but may in its discretion, enter into
any such 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 11.01 may be executed by the
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Company and the Trustee without the consent of the holders of any of the
Debt Securities at the time outstanding, notwithstanding any of the provisions
of Section 11.02.
SECTION 11.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
DEBT SECURITYHOLDERS. With the consent (evidenced as provided in Section 9.01)
of the holders of not less than a majority in aggregate principal amount of the
Debt Securities at the time outstanding of each series to be affected, 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 thereon)
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or Debt Securities of a Series or of modifying in any manner the
rights of the holders of the Debt Securities of such series to be affected;
PROVIDED, HOWEVER, that no such supplemental indenture shall (i) change the
fixed maturity (which term shall not include payments due pursuant to an
sinking, purchase or analogous fund) of any Debt Securities, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce
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any premium payable upon the redemption thereof, without the consent of the
holder of each Debt Security so affected, or (ii) reduce the aforesaid
percentage of Debt Securities of any series, the consent of the holders of
which is required for any such supplemental indenture, without the consent of
the holders of all Debt Securities of such series then outstanding.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by the Secretary or any
Assistant Secretary of the Company authorizing the execution of any such
supplemental indentures, and upon the filing with the Trustee of evidence of
the consent of Debt Securityholders as aforesaid, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Debt Securityholders
under this Section 11.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
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SECTION 11.03. EFFECT OF SUPPLEMENTAL INDENTURE. Any supplemental
indenture executed pursuant to the provision of this Article Eleven shall
comply with the Trust Indenture Act of 1939, as then in effect. Upon the
execution of any supplemental indenture pursuant to the provisions of this
Article Eleven, this Indenture shall be and be deemed to be modified and
amended in accordance therewith and the respective rights, limitation of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of all of the Debt Securities or of the Debt
Securities of any series affected, as the case may be, 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.
SECTION 11.04. NOTATION ON DEBT SECURITIES. Debt Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Eleven may, but need not, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Debt Securities so modified as to conform, in the opinion of the Trustee and
the Board of
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Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Debt Securities
then outstanding.
SECTION 11.05. EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE
FURNISHED TRUSTEE. The Trustee, subject to the provisions of Section 8.01 and
8.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Eleven.
ARTICLE XII
Consolidation, Merger, Conveyance or Transfer.
----------------------------------------------
SECTION 12.01. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merger into any other corporation or
convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquired by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws
of the United States of America or any State or
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the District of Columbia, and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of, premium, if any, and interest, if any, on all the
Debt Securities and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time,
or both, would become an Event of Default, shall have occurred and be
continuing and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article Twelve and that all conditions
precedent herein provided for relating to such transaction have been
complied with; PROVIDED, HOWEVER, the Opinion of Counsel shall not be
required to include any opinion with respect to the condition set
forth in paragraph (2) of this Section 12.01.
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SECTION 12.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
12.01, the successor corporation by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein; and in the event of any such
conveyance or transfer, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this instrument or any
successor corporation which shall have theretofore become such in the manner
prescribed in Section 12.01) shall be discharged from all liability under this
Indenture and in respect of the Debt Securities and may be dissolved and
liquidated.
ARTICLE XIII
Satisfaction and Discharge of Indenture or Certain
--------------------------------------------------
Covenants.
----------
SECTION 13.01. Satisfaction and Discharge of Indenture. When (a) the
Company shall deliver to the Trustee for cancelation all Debt Securities of a
series
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theretofore authenticated (other than any Debt Security of such series which
shall have been destroyed, lost or stolen and which shall have been placed or
paid as provided in Section 2.06) and not theretofore canceled; or (b) all the
Debt Securities of such series not theretofore canceled or delivered to the
Trustee for cancelation shall have become due and payable, or are by their
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds sufficient to pay at maturity or upon redemption all
of the Debt Securities of such series (other than any Debt Securities of such
series which shall have been mutilated, destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.06) not theretofore
canceled or delivered to the Trustee for cancelation, including principal and
premium, if any, and interest, if any, due or to become due to such date of
maturity or redemption date, as the case may be, but excluding, however, the
amount of any money for the payment of the principal of and premium, if any, or
interest, if any, on the Debt Securities of such series (1) theretofore
deposited with the Trustee with respect to Debt Securities of such series and
repaid by the Trustee to the Company in accordance with the provisions of
Section 13.05 or (2) paid
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with respect to Debt Securities of such series to any State or to the District
of Columbia pursuant to its unclaimed property or similar laws, and if in
either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect with respect to the Debt Securities of such series except as to
(A) the rights of Holders of Debt Securities of such series to receive solely
from funds deposited by the Company with the Trustee, in trust as
described above in this Section 13.01, payment of the principal of, premium, if
any, and the interest, if any, on such Debt Securities when such payments are
due; (b) the Company's obligations with respect to such Debt Securities under
Section 2.05, 2.06, 5.02 and 13.03; and (C) the rights, powers, duties and
immunities of the Trustee hereunder, and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with and at the cost and
expense of the Company, shall execute such instruments as may be requested by
the Company acknowledging satisfaction of and discharging this Indenture with
respect to such series of Debt Securities. Notwithstanding the satisfaction
and discharge of this Indenture with respect to any series of
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Debt Securities, the obligations of the Company to the Trustee under Section
8.06 shall survive.
SECTION 13.02. DEFEASANCE UPON DEPOSIT OF MONEY, U.S. GOVERNMENT
OBLIGATIONS OR ELIGIBLE OBLIGATIONS. At the Company's option either (a) the
Company shall be deemed to have been discharged (as defined below) from its
obligations with respect to any series of Debt Securities on the ninety-first
day after the applicable conditions set forth below have been satisfied or (b)
the Company shall cease to be under any obligations to comply with any term,
provision or condition set forth in Sections 5.05, 5.06 and 12.01 with respect
to any series of Debt Securities and any other covenants provided in a Certified
Resolution delivered to the Trustee pursuant to Section 2.02(A) hereof or an
indenture supplemental hereto with respect to such series of Debt Securities at
any time after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or cause to be deposited
irrevocably with the Trustee as trusts funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Debt Securities of such series (A) money in an
amount, or (B) U.S. Government Obligations and/or Eligible
Obligations which through the payment of interest and
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principal in respect thereof in accordance with their terms will
provide, not later than one business day before the due date of any
payment, money in an amount, or (C) a combination of (A) and (B),
sufficient, in the opinion (with respect to (A) and (B)) of a
nationally recognized firm of independent public accounts selected
by the Company expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of
principal (including mandatory sinking fund payments) of, premium,
if any, and interest, if any, on, the Outstanding Debt Securities of
such series on the dates such installments of principal, premium, if
any, and interest, if any, are due (taking into account any
redemption pursuant to optional sinking fund payments notice of
which redemption is provided to the Trustee at the time of
the deposit referred to in this paragraph (1);
(2) if the Debt Securities of such series are then listed on the
New York Stock 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
Debt Securities to be delisted;
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(3) no Event of Default with respect to the Debt Securities of
such series under Section 7.01(a), 7.01(b), 7.01(c), 7.01(e) or
7.01(f) of this Indenture shall have occurred and be continuing on
the date of such deposit and the Company shall have furnished an
Officers' Certificate to such effect;
(4) the Company shall have delivered to the Trustee (a) an
Opinion of Counsel or (b) a ruling from, or published by, the
Internal Revenue Service, whichever of (a) or (b) the Company shall
determine, to the effect that Holders of the Debt 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 13.02 and will be subject to Federal income tax
on the same amount and in the same manner and at the same time as
would have been the case if such option had not been exercised.
"Discharged" means, for purposes of this Section 13.02, that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by,
and obligations under, the Debt Securities of such series and to have satisfied
all the obligations under this Indenture relating to the Debt Securities
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of such series (and the Trustee, at the expense of the Company, shall execute
such instruments as may be requested by the Company acknowledging the same),
except (A) the rights of Holders of Debt Securities of such series to receive,
solely from the trust fund described in clause (1) above, payment of the
principal, premium, if any, and the interest, if any, on such Debt Securities
when such payments are due; (B) the Company's obligations with respect to such
debentures under Sections 2.05, 2.06, 5.02 and 13.03; and (c) the rights,
powers, duties and immunities of the Trustee hereunder. Notwithstanding the
satisfaction and discharge of this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 8.06
shall survive.
SECTION 13.03. DEPOSITED MONEY, U.S. GOVERNMENT OBLIGATIONS AND
ELIGIBLE OBLIGATIONS TO BE HELD IN TRUST BY TRUSTEE. All money, U.S. Government
Obligations and Eligible Obligations deposited with the Trustee pursuant to
Section 13.01 or 13.02 and with respect to U.S. Government Obligations and
Eligible Obligations, the principal and interest in respect thereof, shall be
held irrevocably in trust and applied by it to the payment in accordance with
the provisions of the Debt Securities and this Indenture, either directly or
through any paying agent (including the Company
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if acting as its own paying agent), to the holders of the particular Debt
Securities for the payment or redemption of which such money has been deposited
with the Trustee, of all sums due and to become due thereon for principal,
premium, if any, and interest, if any, but such money need not be segregated
from other funds except to the extent required by law. The Trustee shall
promptly pay to the Company, upon written request of the Company, any excess
money, U.S. Government Obligations or Eligible Obligations held by the Trustee
at any time.
SECTION 13.04. PAYING AGENT TO REPAY MONEY HELD. Upon the satisfaction
and discharge of this Indenture, all money then held by any paying agent of the
Debt Securities (other than the Trustee) shall, upon demand of the Company, be
repaid to it or paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such money.
SECTION 13.05. RETURN OF UNCLAIMED AMOUNTS. Notwithstanding anything
to the contrary contained in this Indenture (including, but not limited to, the
provisions of Section 13.03), any amounts deposited with or paid to the Trustee
for payment of any portion of the principal of (which term shall for these
purposes include payments due pursuant to any sinking, purchase or analogous
fund),
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premium, if any, or interest, if any, on the Debt Securities and not applied by
remaining unclaimed by the holders of such Debt Securities for two years after
the date upon which such portion of the principal of, premium, if any, or
interest, if any, on such Debt Securities, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee on demand; and
the holder of any of such Debt Securities shall thereafter look only to the
Company for any payment which such holder may be entitled to collect.
Notwithstanding the foregoing, the Trustee, before being required to make any
such repayment, may at the expense and at the written request of the Company,
mail to such holder or cause to be published once a week for two successive
weeks (in each case on any day of the week) in a newspaper printed in the
English language and customarily published at least once a day at least five
days in each calendar week and of general circulation in the City and State of
New York, a notice that said amounts have not been so applied and that after a
date named herein any unclaimed balance of said amounts then remaining will be
promptly returned to the Company.
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ARTICLE XIV
Immunity of Incorporators, Stockholders
---------------------------------------
Officers and Directors.
-----------------------
SECTION 14.01. INDENTURE AND DEBT SECURITIES SOLELY CORPORATE
OBLIGATIONS. No recourse for the payment of the principal of, premium, if any,
or interest, if any, on any Debt Security, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any Debt Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Debt Securities.
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ARTICLE XV
Miscellaneous Provisions.
-------------------------
SECTION 15.01. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All the
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
SECTION 15.02. OFFICIAL ACTS BY SUCCESSOR CORPORATION. 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 the time be the lawful sole successor
of the Company.
SECTION 15.03. ADDRESSES FOR NOTICES, ETC. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Debt Securities on the Company shall
be deemed to have been sufficiently given or served, for all purposes, if given
or served in writing (until another address is filed by the Company with the
Trustee) to Xxxxxx Industries, Inc., Suite 40000, 0000 Xxxxxx, Xxxxxxx, Xxxxx
00000, Attention: Treasurer. Any notice, direction, request or demand by any
Debt Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or
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served, for all purposes, if given or served in writing at the principal office
of the Trustee which at the date of this Indenture is 000 Xxxxxx, 0xx Xxxxx,
Xxxxxxx, Xxxxx 00000, Attention: Vice President.
SECTION 15.04. NEW YORK CONTRACT. This Indenture and each Debt
Security shall be deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in accordance with the laws of
the said State without regard to conflicts of laws principles (other than
Section 5-1401 of the New York General Obligation Law).
SECTION 15.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. 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, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (A) a statement that the Person making such
certificate or opinion has read such covenant or
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condition; (B) 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; (C) a statement that in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (D) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with.
SECTION 15.06. LEGAL HOLIDAYS. In any case where the date of maturity
of interest on or principal of the Debt Securities of any series or the date
fixed for redemption of any Debt Security of any series shall be in the City and
State of New York a Saturday, a Sunday, or a day on which banking institutions
are authorized by law to close,then payment of such interest on or principal and
premium, if any, need not be made on such date but may be made on the next
succeeding day not in such city a Saturday, a Sunday, nor a day on which banking
institutions are authorized by law to close 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 from and after such date.
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SECTION 15.07. TRUST INDENTURE ACT TO CONTROL. If and to the extent
that any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by any of
the Sections 310 and 317, inclusive, of the Trust Indenture Act of 1939, such
required provision shall control.
SECTION 15.08. DEBT SECURITIES CONTROLLING IN THE EVENT OF
INCONSISTENCIES BETWEEN INDENTURE AND DEBT SECURITIES. If the provisions of any
series of Debt Securities issued hereunder are inconsistent or conflict with the
provisions of this Indenture, the provisions of the Debt Securities of such
series shall be controlling with respect to such series.
SECTION 15.09. TABLE OF CONTENTS, HEADINGS, ETC. The table of contents
and the titles and headings of the articles and sections of this Indenture have
been inserted for convenience of reference only, are not be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 15.10. EXECUTION 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 by one and the same instrument.
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THE TEXAS COMMERCE BANK National Association hereby accepts the trusts
in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
IN WITNESS WHEREOF, Xxxxxx Industries, Inc., has caused this Indenture
to be signed by its Chairman of the Board, its President, its Chief Financial
Officer, one of its Vice Presidents or its Treasurer, and its corporate seal to
be affixed hereunto, and the same to be attested by its Secretary or an
Assistant Secretary and Texas Commerce Bank National Association, has caused
this Indenture to be signed by one of its Vice Presidents, has caused its
corporate seal to be affixed hereunto, and the same to be attested by its
Secretary or an Assistant Secretary, as of the day and year first written above.
Xxxxxx Industries, Inc.
By _______________________
Name:
Title:
Attest:
By ________________________
Name:
Title:
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(SEAL)
TEXAS COMMERCE BANK
National Association
as Trustee
By _______________________
Name:
Title:
Attest:
By ________________________
Name:
Title:
(SEAL)
