DB Draft of 11/24/96
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CARLISLE COMPANIES INCORPORATED
TO
Fleet National Bank,
Trustee
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INDENTURE
Dated as of _____________, 1996
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Reconciliation and tie between Indenture, dated as of _______________, 1996 and
the Trust Indenture Act of 1939, as amended ("TIA").
Indenture
TIA Section Section
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310(a)(1)....................................................... 609
(a)(2)....................................................... 609
(a)(3)....................................................... TIA
(a)(4)....................................................... Not Applicable
(a)(5)....................................................... TIA
(b).......................................................... 610; TIA
311(a).......................................................... 613; TIA
(b).......................................................... 613; TIA
(c).......................................................... Not Applicable
312(a).......................................................... 701
(b).......................................................... 702; TIA
(c).......................................................... 702(c); TIA
313(a).......................................................... 703; TIA
(b).......................................................... 703; TIA
(c).......................................................... 703; TIA
(d).......................................................... 703; TIA
314(a).......................................................... 704; TIA
(b).......................................................... Not Applicable
(c)(1)....................................................... 102
(c)(2)....................................................... 102
(c)(3)....................................................... Not Applicable
(d).......................................................... Not Applicable
(e).......................................................... 102
315(a).......................................................... 601; 603; TIA
(b).......................................................... 602; TIA
(c).......................................................... TIA
(d)(1)....................................................... TIA
(d)(2)....................................................... 603; TIA
(d)(3)....................................................... 603; TIA
(e).......................................................... TIA
316(a)(1)(A).................................................... 502; 512
(a)(1)(B).................................................... 513
316(a)(last sentence)........................................... Definition of
Outstanding
(b).......................................................... 507; 508
(c).......................................................... 503
317(a)(1)....................................................... 504
(a)(2)....................................................... TIA
(b).......................................................... 1003
318(a).......................................................... 108
(b).......................................................... TIA
(c).......................................................... 108; TIA
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This reconciliation and tie section does not constitute part of the
Indenture.
TABLE OF CONTENTS
Page
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PARTIES ................................................................... 1
RECITALS .................................................................. 1
Authorization of Indenture ............................................. 1
Compliance with Legal Requirements ..................................... 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions ............................................... 1
Affiliate .............................................................. 2
Attributable Debt ...................................................... 2
Authenticating Agent ................................................... 2
Authorized Newspaper ................................................... 2
Bearer Security ........................................................ 2
Board of Directors ..................................................... 2
Board Resolution ....................................................... 2
Business Day ........................................................... 2
Capital Stock .......................................................... 3
Closing Price Per Share ................................................ 3
Commission ............................................................. 3
Company ................................................................ 3
Company Order .......................................................... 3
Consolidated Net Tangible Assets ....................................... 3
Conversion Date ........................................................ 3
Conversion Event ....................................................... 3
Corporate Trust Office ................................................. 4
Corporation ............................................................ 4
Coupon ................................................................. 4
Currency ............................................................... 4
Debt ................................................................... 4
"Defaulted Interest .................................................... 4
Depositary ............................................................. 4
Dollar" or "U.S. Dollar" or "$ ......................................... 4
Dollar Equivalent of the Currency Unit ................................. 4
Dollar Equivalent of the Foreign Currency .............................. 4
ECU .................................................................... 5
Election Date .......................................................... 5
Euroclear .............................................................. 5
European Communities ................................................... 5
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
i
Page
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European Monetary System .............................................. 5
Event of Default ...................................................... 5
Exchange Rate Agent ................................................... 5
Exchange Rate Officer's Certificate ................................... 5
Foreign Currency ...................................................... 5
Funded Debt ........................................................... 5
Global Security ....................................................... 5
Government Obligations ................................................ 5
Holder ................................................................ 5
Indenture ............................................................. 5
interest .............................................................. 6
Interest Payment Date ................................................. 6
Market Exchange Rate .................................................. 6
Maturity .............................................................. 6
NYSE .................................................................. 7
Officers' Certificate ................................................. 7
Opinion of Counsel .................................................... 7
"Original Issue Date" ................................................. 7
"Original Issue Discount Security" .................................... 7
Outstanding ........................................................... 7
Predecessor Security .................................................. 8
"Principal Property" .................................................. 8
"Record Date" ......................................................... 9
Redemption Date ....................................................... 9
Redemption Price ...................................................... 9
Registered Holder ..................................................... 9
"Registered Security" ................................................. 9
Responsible Officer ................................................... 9
"Securities" .......................................................... 9
"Security Register" and "Security Registrar" .......................... 9
Senior Indebtedness ................................................... 9
Senior Securities ..................................................... 9
Significant Subsidiary ................................................ 9
"Special Record Date" ................................................. 9
"Stated Maturity", .................................................... 9
Subordinated Securities ............................................... 10
"Subsidiary" .......................................................... 10
"Trading Day" ......................................................... 10
Trust Indenture Act ................................................... 10
Trustee ............................................................... 10
Vice President ........................................................ 10
Yield to Maturity ..................................................... 10
Section 102. Compliance Certificates and Opinions ..................... 10
Section 103. Form of Documents Delivered to Trustee ................... 11
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
Page
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Section 104. Acts of Holders; Record Dates ............................ 11
Section 105. Notices, Etc., to Trustee and Company .................... 13
Section 106. Notice to Holders; Waiver ................................ 13
Section 107. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability ................. 14
Section 108. Conflict with Trust Indenture Act ........................ 14
Section 109. Effect of Headings and Table of Contents ................. 14
Section 110. Successors and Assigns ................................... 15
Section 111. Separability Clause ...................................... 15
Section 112. Benefits of Indenture .................................... 15
Section 113. Governing Law ............................................ 15
Section 114. Legal Holidays ........................................... 15
Section 115. Counterparts ............................................. 15
ARTICLE TWO
Security Forms
Section 201. Forms Generally .......................................... 16
Section 202. Form of Trustee's Certificate of Authentication .......... 16
Section 203. Additional Provisions Required in Global Security ........ 17
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series ..................... 17
Section 302. Denominations ............................................ 20
Section 303. Execution, Authentication, Delivery and Dating of
Securities ............................................. 20
Section 304. Temporary Securities ..................................... 22
Section 305. Registration, Registration of Transfer and Exchange ...... 23
Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen Securities 26
Section 307. Payment of Interest; Interest Rights Preserved ........... 27
Section 308. Persons Deemed Owners .................................... 28
Section 309. Cancellation ............................................. 29
Section 310. Computation of Interest .................................. 29
Section 311. Currency and Manner of Payments in Respect of Securities . 29
Section 312. Appointment and Resignation of Successor Exchange Rate
Agent .................................................... 32
Section 313. Compliance with Certain Laws and Regulations ............. 33
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iii
Page
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture ................. 33
Section 402. Application of Trust Money .............................. 34
ARTICLE FIVE
Remedies
Section 501. Events of Default ....................................... 35
Section 502. Acceleration of Maturity; Rescission and Annulment ...... 36
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee ................................................. 38
Section 504. Trustee May File Proofs of Claim ........................ 39
Section 505. Trustee May Enforce Claims Without Possession of
Securities .............................................. 40
Section 506. Application of Moneys Collected by Trustee .............. 40
Section 507. Limitation on Suits ..................................... 41
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest .................................... 41
Section 509. Restoration of Rights and Remedies ...................... 42
Section 510. Rights and Remedies Cumulative .......................... 42
Section 511. Delay or Omission Not Waiver ............................ 42
Section 512. Control by Holders ...................................... 42
Section 513. Waiver of Past Defaults ................................. 43
Section 514. Undertaking for Costs ................................... 43
Section 515. Waiver of Stay or Extension Laws ........................ 43
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities ..................... 44
Section 602. Notice of Defaults ...................................... 45
Section 603. Certain Rights of the Trustee ........................... 45
Section 604. Not Responsible for Recitals or Issuance of Securities .. 46
Section 605. May Hold Securities ..................................... 46
Section 606. Money Held in Trust ..................................... 47
Section 607. Compensation and Reimbursement .......................... 47
Section 608. Right to Rely on Officers' Certificate .................. 48
Section 609. Eligibility ............................................. 48
Section 610. Resignation and Removal; Appointment of Successor ....... 48
Section 611. Acceptance of Appointment by Successor .................. 50
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iv
Page
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Section 612. Merger, Conversion, Consolidation or Succession to
Business ................................................ 51
Section 613. Preferential Collection of Claims Against Company ....... 51
Section 614. Appointment of Authenticating Agent ..................... 51
ARTICLE SEVEN
Holders' List and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders 53
Section 702. Preservation of Information; Communications to Holders .. 53
Section 703. Reports by Trustee ...................................... 54
Section 704. Reports by Company ...................................... 54
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms .... 55
Section 802. Successor Substituted ................................... 55
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders ...... 56
Section 902. Supplemental Indentures with Consent of Holders ......... 57
Section 903. Execution of Supplemental Indentures .................... 58
Section 904. Effect of Supplemental Indentures ....................... 59
Section 905. Conformity with Trust Indenture Act ..................... 59
Section 906. Reference in Securities to Supplemental Indentures ...... 59
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest .............. 59
Section 1002. Maintenance of Office or Agency ......................... 59
Section 1003. Money for Securities Payments to Be Held in Trust ....... 60
Section 1004. Limitations on Secured Debt ............................. 61
Section 1005. Limitations on Sales and Leasebacks ..................... 62
Section 1006. Waiver of Certain Covenants ............................. 63
Section 1007. Certificate of Compliance ............................... 63
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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Page
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article ................................ 63
Section 1102. Election to Redeem; Notice to Trustee ................... 63
Section 1103. Selection by Trustee of Securities to Be Redeemed ....... 64
Section 1104. Notice of Redemption .................................... 64
Section 1105. Deposit of Redemption Price ............................. 65
Section 1106. Securities Payable on Redemption Date ................... 65
Section 1107. Securities Redeemed in Part ............................. 65
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article ................................ 66
Section 1202. Satisfaction of Sinking Fund Payments with Securities ... 66
Section 1203. Redemption of Securities for Sinking Fund ............... 66
ARTICLE THIRTEEN
Defeasance
Section 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance ....................... 67
Section 1302. Defeasance and Discharge ................................ 67
Section 1303. Covenant Defeasance ..................................... 67
Section 1304. Conditions to Defeasance or Covenant Defeasance ......... 68
Section 1305. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions ................... 70
Section 1306. Reinstatement ........................................... 70
ARTICLE FOURTEEN
Subordination
Section 1401. Agreement to Subordinate ................................ 71
Section 1402. Payments to Holders of Subordinated Securities .......... 71
Section 1403. No Payment When Senior Debt in Default .................. 72
Section 1404. Subrogation ............................................. 74
Section 1405. Authorization by Holders of Subordinated Securities ..... 75
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
vi
Page
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Section 1406. Notice to Trustee ....................................... 75
Section 1407. Trustee's Relation to Senior Indebtedness ............... 76
Section 1408. No Impairment of Subordination .......................... 76
Section 1409. Trust Moneys Not Subordinated ........................... 76
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
vii
THIS INDENTURE, dated as of __________, 1996 between Carlisle Companies
Incorporated, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, and Fleet National
Bank, a national banking association, organized under the laws of the United
States (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness, (as such term is
hereinafter defined) of the Company (such debentures, notes or other evidences
of indebtedness herein called the "Securities") to be issued in one or more
series as in this Indenture provided. The Securities may either be senior (the
"Senior Securities") or subordinated (the "Subordinated Securities").
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is agreed for the equal and proportionate benefit of
all Holders of the Securities of any series, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture and of any indenture supplemental
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
article.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such Person
under such lease during the remaining primary term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease, as determined in good faith by the Company,
compounded semi-annually. The net amount of rent required to be paid under any
such lease for any such period shall be the amount of the rent payable by the
lessee with respect to such period, after excluding amounts required to be paid
on account of maintenance, repairs, insurance, taxes, assessments, water rates
and similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the amount of
such penalty, but shall not include any rent required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each Business Day whether or not published on
Saturdays, Sundays or holidays. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Authorized Newspapers.
"Bearer Security" means any Security issued under this Indenture which is
payable to bearer.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board or any directors and/or officers of
the Company to whom that board or committee shall have duly delegated its
authority.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means, except as may otherwise be provided herein or in any
Security, when used with respect a location, each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in that
location are authorized or obligated by law or executive order to close.
2
"Capital Stock" means any stock of any class of the Company.
"Closing Price Per Share" means, with respect to the Capital Stock of the
Company, for any day the last reported sales price per share (i) on the New York
Stock Exchange, Inc. as reported in the Wall Street Journal (or other similar
newspaper) for New York Stock Exchange Composite Transactions (or, if no such
sale is so reported on such day, the average of such reported closing bid and
asked prices regular way) or, if the Capital Stock is not listed or admitted to
trading on such Exchange, on the principal (as determined by the Company's Board
of Directors) national securities exchange on which the Capital Stock is listed
or admitted to trading or, (ii) if not listed or admitted to trading on any
national securities exchange, on the National Association of Securities Dealers
Automated Quotations National Market System; or if the Capital Stock is not
listed or admitted to trading on any national securities exchange or quoted on
such National Market System, the average of the closing bid and asked prices in
the over-the-counter market as furnished by any New York Stock Exchange member
firm selected from time to time by the Company for that purpose.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Order" and "Company Request" mean, respectively, a written order
or request signed in the name of the Company by both (i) its Chairman of the
Board of Directors, its Vice Chairman of the Board of Directors, its President
or a Vice President, and (ii) its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof constituting Funded
Debt by reason of being renewable or extendable) and (ii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the balance sheet of the Company and its
consolidated Subsidiaries as of the end of the most recent calendar quarter and
computed in accordance with generally accepted accounting principles.
"Conversion Date" has the meaning specified in Section 311(d).
"Conversion Event" means the cessation of use of (a) a Foreign Currency
both by the government of the country which issued such Currency and by a
central bank or other public institutions of or within the international banking
community for the settlement of transactions, (b) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (c) any currency unit (or
composit currency) other than the ECU for the purposes for which it was
established.
3
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at Fleet National Bank, c/o First
Chicago Trust Company of New York, 00 Xxxx Xxxxxx, 0xx Xxxxx - Window Xx. 0, Xxx
Xxxx, Xxx Xxxx 00000.
"Corporation" includes corporations, associations, companies, joint-stock
companies, limited liability companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, currency unit or units or
composite currency or currencies, including, without limitation, the ECU, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"Debt" means any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" and "covenant defeasance" have the respective meanings
specified in Sections 1302 and 1303.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Securities of that
series.
"Dollar" or "U.S. Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 311(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 311(f).
4
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 311(h).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate Agent", with respect to Securities of or within any series,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York Clearing House bank, designated pursuant to Section 301
or Section 312.
"Exchange Rate Officer's Certificate" means a tested telex or a certificate
setting forth (a) the applicable Market Exchange Rate and (b) the Dollar or
Foreign Currency amounts of principal (and premium, if any) and interest, if any
(on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 in the
relevant Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer, any Vice President or any Assistant
Treasurer of the Company.
"Foreign Currency" means any Currency other than the U.S. Dollar.
"Funded Debt" means all Debt having a maturity of more than 12 months from
the date as of which the amount thereof is to be determined or having a maturity
of less than 12 months but by its terms being renewable or extendable beyond 12
months from such date at the option of the borrower.
"Global Security" means a Security bearing the legend prescribed in Section
203 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
nominee.
"Government Obligations" has the meaning specified in Section 1304.
"Holder" means, with respect to a Registered Security, a Person in whose
name a Security is registered in the Security Register and, with respect to a
Bearer Security, a bearer thereof or of a Coupon appertaining thereto.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto
5
entered into pursuant to the applicable provisions hereof, including, for all
purposes of this instrument, and any such supplemental indenture, the mandatory
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated in Section 301.
"interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at Maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise, and, when used with respect
to an Original Issue Discount Security which by its terms bears interest only
after Maturity, interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (a) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (b) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (c) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (a), (b) and
(c), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or any other principal market for such Currency in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, pursuant to a sinking fund or
otherwise.
"Mortgage" has the meaning specified in Section 1004.
"Nonrecourse Obligation" means Debt or lease payment obligations
substantially related to (i) the acquisition of assets not currently owned by
the Company or any of its significant subsidiaries or (ii) the financing or the
construction of or improvements to equipment or facilities involving the
development of properties of the Company or any of its Significant Subsidiaries,
as to which the obligee with respect to such indebtedness or
6
obligation has no recourse to the general corporate funds or the assets, in
general, of the Company or any of its Significant Subsidiaries.
"NYSE" means the New York Stock Exchange, Inc.
"Officers' Certificate" means a certificate signed by both (a) the Chairman
of the Board of Directors, a Vice Chairman of the Board of Directors, the
President or a Vice President and (b) the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee. Each such Officers' Certificate shall include the statements required
by Section 102 hereunder.
"Opinion of Counsel" means a written opinion of counsel who shall be
acceptable to the Trustee, who may be an employee of or counsel for the Company,
and which opinion complies with the requirements of Section 102.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of an Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, means, except as
otherwise required by the Trust Indenture Act as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and of any Coupons;
provided, however, that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any series have taken any
action (including the making of any request, demand, authorization or
direction), the giving of any notice, consent or waiver (or the taking of any
other action) hereunder and in determining voting rights of any Holder of a
7
Security hereunder (i) the principal amount of Original Issue Discount
Securities that shall be deemed to be Outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of
such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 and (ii) the principal amount of any Security, the
principal amount of which is denominated in a Specified Currency, shall be
deemed to be that amount as determined in accordance with Section 311 (or, in
the case of any Original Issue Discount Security, the amount determined in
accordance with clause (i) above as well as Section 311), and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or any such other obligor. In case of
a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice.
"Overdue Rate" means, unless otherwise specified in the Securities of any
series, the same rate as the rate of interest specified in the Securities of
such series or, in the case of a series of Original Issue Discount Securities,
the Yield to Maturity of such series of Securities.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any real property, manufacturing plant,
warehouse or other physical facility and related fixtures and improvements,
located in the United States of America (excluding the territories and
possessions of the United States of America) and owned by the Company or any
Subsidiary, in each case the gross book value (without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Tangible Assets, other than any such
facility or portion thereof which the Board of Directors of the Company declares
by resolution is not of material importance to the total business conducted by
the Company and its Subsidiaries as an entirety.
"Proceeding" has the meaning specified in Section 1402.
8
"Record Date" for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified as such in the terms of the
Securities of such series, or, if no such date is so specified, if such Interest
Payment Date is the first day of a calendar month, the fifteenth day of the next
preceding calendar month or, if such Interest Payment Date is the fifteenth day
of a calendar month, the last day of the preceding calendar month, whether or
not such Record Date is a Business Day.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Holder" means the Holder of a Registered Security.
"Registered Security" means any Security issued under this Indenture which
is registered as to principal and interest in the Security Register.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Bearer Security, including any Coupon
appertaining thereto, or any Registered Security authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means all Debt of the Company including principal and
interest (and premium, if any) (including, without limitation, any interest that
would accrue but for the occurrence of any event specified in Section 501(6) or
(7) hereunder) on such Debt, created, incurred or assumed on or after the date
of the first issuance of any Subordinated Securities, except (i) existing
Subordinated Securities, (ii) such indebtedness as is by its terms expressly
stated to be junior in right of payment to Subordinated Securities, and (iii)
such indebtedness as is by its terms expressly stated to rank pari passu with,
the Subordinated Securities.
"Senior Securities" has the meaning stated in the first recital of this
Indenture.
"Significant Subsidiary" means any Subsidiary of the Company which owns
a Principal Property, any Subsidiary which accounts for 10% or more of the
consolidated annual net sales or total assets of the Company at the end of the
most recently completed fiscal year and any Subsidiary which owns directly or
indirectly stock of a Significant Subsidiary.
"Special Record Date" has the meaning specified in Section 307.
"Stated Maturity", when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date
9
on which the principal of such Security or such instalment of principal or
interest is due and payable.
"Subordinated Securities" has the meaning stated in the first recital of
this Indenture.
"Subordinated Securities Payment" has the meaning specified in Section
1402.
"Subsidiary" means a corporation whose accounts are consolidated with those
of the Company in accordance with generally accepted accounting principles.
"Trading Day" means, with respect to the Capital Stock, so long as the
Capital Stock is listed or admitted to trading on the NYSE, a day on which the
NYSE is open for the transaction of business, or, if the capital Stock is not
listed or admitted to trading on the NYSE, a day on which the principal national
securities exchange on which the Capital Stock is listed is open for the
transaction of business, or, if the Capital Stock is not so listed or admitted
for trading on any national securities exchange, a day on which NASDAQ is open
for the transaction of business.
"Trust Indenture Act" (except as otherwise provided in Section 905) means
the Trust Indenture Act of 1939, as amended, as in force at the date as of which
this instrument was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Yield to Maturity" means, in the case of any Original Issue Discount
Security, the yield to maturity specified in such Security or in a Board
Resolution relating thereto.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by any officer of the Company, or Opinion
of Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
10
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Securities of any
series may take any action (including the making of any demand or request, the
giving of any notice, consent or
11
waiver or the taking of any other action), the fact that at the time of taking
any such action the Holders of such specified percentage have joined therein may
be evidenced (1) by any instrument or any number of instruments of similar tenor
executed by such Holders in person or by agent or proxy appointed in writing, or
(2) by the record of such Holders of Securities voting in favor thereof at any
meeting of such Holders duly called and held, or (3) by a combination of such
instrument or instruments and any such record of such a meeting of such Holders;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments and/or such record are delivered
to the Trustee and, where it is expressly required, to the Company. Proof of
execution of any instrument or of a writing appointing any such agent or proxy
shall be sufficient for any purpose of this Indenture and (subject to the
requirements of the Trust Indenture Act and Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section 104.
Without limiting the generality of the foregoing, a Holder, including a
Depositary that is a Holder of a Global Security, may make, give or take, by a
proxy or proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted in this
Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a Global Security may provide its proxy or proxies to the beneficial
owners of interest in any such Global Security.
(b) Subject to the requirements of the Trust Indenture Act and Sections 601
and 603, proof of the execution of any instrument by a Holder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
(c) If the Company shall solicit from the Registered Holders any demand,
request, notice, consent, waiver or the taking of any other action, the Company
may, at its option, by a Board Resolution, fix in advance a record date for the
determination of Registered Holders entitled to give such demand, request,
notice, consent or waiver or to take such other action, but the Company shall
have no obligation to do so. If such a record date is fixed, such demand,
request, notice, consent, waiver or other action may be given before or after
the record date, but only the Registered Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite percentage of Securities
Outstanding have authorized or agreed or consented to such demand, request,
notice, consent, waiver or taking of any other action, and for that purpose the
Securities Outstanding shall be computed as of the record date; provided,
however, that no such demand, request, notice, consent, waiver or taking of any
other action by the Holders on the record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the Record Date.
(d) The ownership of Registered Securities shall be proved by the Security
Register or by a certificate of the Person designated by the Company to keep the
Security Register and to act as repository in accordance with the provisions of
Section 305.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the
12
Trustee, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
(f) At any time prior to (but not after) the evidencing to the Trustee of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number or other distinguishing symbol of which is shown by the evidence
to be included among the serial numbers or other distinguishing symbols of the
Securities the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, (i) if
any of the Securities affected by such event are Registered Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any)
prescribed for the giving of such notice, and, (ii) if any of the Securities
affected by such event are Bearer Securities, notice to the Holders thereof
shall be sufficiently given (unless otherwise herein or in the terms of such
Bearer Securities expressly provided) if published once in an Authorized
Newspaper in New York, New York, and in such other city or cities, if any, as
may be specified as contemplated in Section 301.
In any case where notice to Holders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. In any case where notice is given to Holders by publication, neither
the failure to publish such notice, nor any defect in any notice so published,
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the person entitled to receive such notice, either before
or after the event,
13
and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver. Notwithstanding anything to the contrary elsewhere in this Indenture as
to the giving of notice, any other form of written notice is sufficient, if
received.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give any notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder. If it is impossible or,
in the opinion of the Trustee, impracticable to give any notice by publication
in the manner herein required, then such publication in lieu thereof as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section 107. Incorporators, Stockholders, Officers and Directors of Company
Exempt from Individual Liability.
To the extent permitted by law, no recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
Section 108. Conflict with Trust Indenture Act.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be a part of this Indenture and shall, to the extent applicable,
be governed by such provisions. If any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under
such Act to be a part of and govern this Indenture, the provision of the Trust
Indenture Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
14
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Security shall not be a Business Day at the place of
payment, then (notwithstanding any other provision on this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day in such place with the
same force and effect as if made on such Interest Payment Date or Redemption
Date or at the Stated Maturity or Maturity; provided, however, that no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
15
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series and any Coupons to be attached thereto shall
be substantially in such form as shall be established by a Board Resolution or
pursuant to authority granted by a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with any applicable law, rule or regulation
or with the rules of any securities exchange or as may, consistent with the
provisions of this Indenture, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Temporary
Securities of any series may be issued as permitted by Section 304. If the form
of Securities or Coupons of any series is established by action taken pursuant
to authority granted by a Board Resolution, a copy of an appropriate record of
any such action taken pursuant thereto, including a copy or the approved form of
Securities or Coupons, shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated in Section 303 for the authentication
and delivery of such Securities. Any portion of the text of any Security may be
set forth on the reverse thereof, with an appropriate reference thereto on the
face of the Security.
Unless otherwise specified as contemplated in Section 301, Bearer
Securities shall have Coupons attached.
The definitive Securities and Coupons shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities and Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Fleet National Bank,
as Trustee
By_________________________________
Authorized Officer
16
Section 203. Additional Provisions Required in Global Security.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration or transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances."
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in a Board Resolution or pursuant to authority granted by a Board
Resolution, a copy of which, certified by the Secretary or an assistant or
attesting Secretary of the Company, shall be delivered to the Trustee, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of a particular series, the following:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of all other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the manner in which or the Person to whom any interest on a
Registered Security of the series shall be payable, if other than the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Record Date for
such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable or the method by which such date or dates may be
determined;
17
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates (including the
Overdue Rate) shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates may be
determined, the Interest Payment Dates on which such interest shall be
payable and the Record Dates for the determination of Holders to whom
interest is payable;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the Currency in which and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, the Currency in which, and
other terms and conditions upon which Securities of the series shall be
redeemed, repurchased or repaid, in whole or in part, pursuant to such
obligation;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
repaid, in whole or in part, at the option of the Holder thereof;
(10) if other than Dollars, the Foreign Currency in which payment of
the principal of (and premium, if any, on) or interest, if any, on the
Securities of the series shall be payable or in which the Securities of the
series shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 311;
(11) if the principal of, and any premium and interest on, the
Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Securities
are stated to be payable, the period or periods within which (including the
Election Date), and the terms and conditions upon which, such election may
be made;
(12) if the amount of payments of principal of, and any premium and
interest on, the Securities of the series may be determined with reference
to an index, formula or other method, the manner in which such amounts
shall be determined;
(13) the applicability, if any, of Section 1302 or Section 1303 to the
Securities of such series, or such other means of defeasance or covenant
defeasance as may be specified for the Securities of such series, and
whether, for the purpose of such defeasance or covenant defeasance, the
term "Government Obligations" shall include obligations referred to in the
definition of such term which are not obligations of the United States of
America or an agency or instrumentality of the United States of America;
18
(14) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denominations in which any Bearer Securities of the series may be issuable;
(15) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or provable in bankruptcy pursuant to Section 504;
(16) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(17) whether Securities of the series shall be issuable as Registered
Securities or Bearer Securities (with or without Coupons), or both, and any
restrictions applicable to the offering, sale or delivery of Bearer
Securities and, if other than as provided in Section 305, the terms upon
which Bearer Securities of a series may be exchanged for Registered
Securities of the same series and vice versa;
(18) the date as of which any Bearer Securities of the series and any
temporary Global Security representing Outstanding Securities of the series
shall be dated if other than the original issue date of the first Security
of the series to be issued;
(19) the forms of the Securities and Coupons, if any, of the series;
(20) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary or Depositaries for such Global Security
or Global Securities and any circumstances other than those set forth in
Section 305 in which any such Global Security may be transferred to, and
registered and exchanged for Registered Securities in the name of, a Person
other than the Depositary for such Global Security or nominee thereof, and
in which any such transfer may be registered, or, if other than as provided
in Section 305, the circumstances under which any exchange may occur;
(21) with respect to such series of Securities, the "stated intervals"
and the method of determining the "record date" for purposes of sections
312(a) and 316(c), respectively, of the Trust Indenture Act;
(22) whether the Securities of such series shall be subordinated and
subject in right of payment to the prior payment in full of all Senior
Indebtedness as set forth in Article Fourteen hereunder; and
(23) any other terms of the series which are not inconsistent with
this Indenture.
All Securities of any one series shall be substantially identical except as
to denomination, interest rate and maturity and except as may otherwise be
provided in or
19
pursuant to such Board Resolution or in any such indenture supplemental hereto.
The applicable Board Resolution or the applicable supplemental indenture may
provide that Securities of any particular series may be issued at various times,
with different Maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Section 302. Denominations.
In the absence of any specification as contemplated in Section 301 with
respect to the Securities of any series, any Securities of a series shall be
issuable in denominations of U.S. $1,000 (or, if such Securities are denominated
in a currency other than United States dollars or in a composite currency, 1,000
units of such other currency or composite currency) and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Company who execute such Securities may determine with the approval of the
Trustee as evidenced by the execution and authentication thereof.
Section 303. Execution, Authentication, Delivery and Dating of Securities.
The Securities shall be signed on behalf of the Company by its Chairman of
the Board of Directors, its Vice Chairman of the Board of Directors, its
President or any of its Vice Presidents, under its corporate seal which may, but
need not, be attested by its Secretary or any of its Assistant Secretaries. Such
signatures may be the manual or facsimile signatures of such officers. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee, in accordance
with the Company Order, shall thereupon authenticate and deliver such Securities
without any further action by the Company. In authenticating such Securities and
accepting the additional responsibilities under this Indenture in relation to
such Securities the Trustee shall be entitled to receive, and (subject to the
requirements of the Trust Indenture Act) shall be fully protected in relying
upon:
20
(1) a copy of any Board Resolution or Board Resolutions relating to
such series and, if applicable, an appropriate record of any action taken
pursuant to such Board Resolutions as prescribed in Sections 201 and 301;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Sections 201 and 301, respectively, and
prepared in accordance with the requirements of the Trust Indenture Act and
Section 103; or
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act and Section 103, which shall state
that:
(a) if the form of such Securities has been established by a
Board Resolution or pursuant to authority granted by a Board
Resolution as permitted by Section 201, such form has been established
in conformity with the provisions of this Indenture;
(b) the terms of such Securities have been established by a Board
Resolution or pursuant to authority granted by a Board Resolution as
permitted by Section 301 in conformity with the provisions of this
Indenture;
(c) such Securities, when issued by the Company and authenticated
and delivered by the Trustee in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting the
enforcement of creditors' rights generally and to general principles
of equity;
(d) that the issuance of such Securities will not conflict with
or result in a breach of the terms or provisions of the certificate of
incorporation or bylaws of the Company, or any indenture, mortgage or
other agreement known to such counsel by which the Company is bound;
(e) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and of such
supplemental indenture, if any, have been complied with and that
authentication and delivery of such Securities by the Trustee and the
execution and delivery of such supplemental indenture, if any, by the
Trustee will not violate the terms of this Indenture; and
(f) that the Company has the corporate power to issue such
Securities, and has taken all necessary corporate action with respect
to such issuance.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Company or if the
Trustee in good faith by its board
21
of directors or board of trustees, executive committee or a trust committee of
directors or trustees or Responsible Officers shall determine that such action
would expose the Trustee to personal liability to existing Holders or would
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
The Trustee shall not be required to authenticate Securities denominated in
a coin or currency other than that of the United States of America if the
Trustee reasonably determines that such Securities impose duties or obligations
on the Trustee which the Trustee is not able or reasonably willing to accept;
provided, however, that the Trustee, upon the request of the Company, will
resign as Trustee with respect to Securities of any series as to which such a
determination is made, prior to the issuance of such Securities, and will comply
with the request of the Company to execute and deliver a supplemental indenture
appointing a successor Trustee pursuant to Section 901.
Notwithstanding the provisions of Section 301 and this Section 303, if all
Securities of a series are not to be originally issued at one time, it shall not
be necessary to deliver the Officers' Certificate, Opinion of Counsel and
Company Order otherwise required pursuant to this Section 303 at or prior to the
time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date, and shall be payable on the dates, in each
case, which shall be specified as contemplated in Section 301.
Only such Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by the
manual signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities for any series, the
Company may execute, and upon a Company Order the Trustee shall authenticate and
deliver, temporary Securities for such series printed, lithographed, typewritten
or otherwise produced. Temporary Securities of any series shall be issuable,
with or without coupons, in any authorized denomination, and substantially of
the tenor or form of the definitive Securities of such series in lieu of which
they are issued but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive
22
Securities in lieu of which they are issued. Without unreasonable delay the
Company shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered (together with
any unmatured Coupons) in exchange therefor without charge at each office or
agency to be maintained by the Company for that purpose pursuant to Section
1002, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series a like aggregate principal amount of
definitive Securities of the same series of authorized denominations having the
same interest rate, Maturity and redemption and repayment provisions and bearing
interest from the same date as such temporary Securities; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the Person entitled to receive the
definitive Bearer Security a certificate substantially in the form approved in
the Board Resolutions relating thereto and such delivery shall occur only
outside the United States of America. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of the same series authenticated and
delivered hereunder.
Section 305. Registration, Registration of Transfer and Exchange.
The Company will keep, either at the office or agency designated and
maintained by the Company for such purpose in the Borough of Manhattan, The City
of New York, in accordance with the provisions of Section 1002, or at any of
such other offices or agencies as may be designated and maintained in accordance
with the provisions of Section 1002, a register or registers in which, subject
to such reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Registered Securities of a series. Each such register
is sometimes herein referred to as a "Security Register". Each Security Register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all normal business
hours such Security Register shall be open for inspection by the Trustee and any
Security Registrar.
Upon surrender for registration of transfer of any Security of any series
at any such office or agency to be maintained for the purpose as provided in
Section 1002, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series and of like tenor in any authorized
denomination for a like aggregate principal amount and having the same interest
rate, Maturity, repayment and redemption provisions.
Bearer Securities (except for any temporary global Bearer Securities) or
any Coupons appertaining thereto (except for Coupons attached to any temporary
global Bearer Security) shall be transferable by delivery.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series and of like tenor
in other authorized denominations, in an equal aggregate principal amount and
having the same interest rate, Maturity, repayment and redemption provisions.
Registered Securities of any series to be exchanged shall be surrendered at any
office or agency to be maintained by the Company for the purpose as provided in
Section 1002, and the Company shall execute, and the Trustee shall authenticate
and deliver, in exchange therefor the Registered Securities of the same series
and having the same interest rate and Maturity which the Holder making the
exchange shall be
23
entitled to receive, bearing numbers or other distinguishing symbols not
contemporaneously outstanding. Each Person designated by the Company pursuant to
the provisions of Section 1002 as a Person authorized to register and register
transfer of the Registered Security is sometimes herein referred to as a
"Security Registrar".
Unless otherwise specified as contemplated in Section 301, at the option of
the Holder, Bearer Securities of such series may be exchanged for Registered
Securities (if the Securities of such series are issuable in registered form) or
Bearer Securities (if Bearer Securities of such series are issuable in more than
one denomination and such exchanges are permitted by such series) of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount, upon surrender of the Bearer Securities to be exchanged at any
such office or agency, with all unmatured Coupons and all matured Coupons in
default. If the Holder of a Bearer Security is unable to produce any such
unmatured Coupon or matured Coupon in default, such exchange may be effected if
the Bearer Securities are accompanied by payment in funds acceptable to the
Company and the Trustee in an amount equal to the face amount of such missing
Coupon, or the surrender of such missing Coupon may be waived by the Company and
the Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an office or agency located outside the United States of America.
Notwithstanding the foregoing, in case any Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series after the close of business at such office or agency on (i)
any Record Date and before the opening of business at such office or agency on
the relevant Interest Payment Date, or (ii) any Special Record Date and before
the opening of business at such office or agency on the related date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date or proposed date of payment, as
the case may be (or, if such Coupon is so surrendered with such Bearer Security,
such Coupon shall be returned to the Person so surrendering the Bearer
Security), and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date of payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such Coupon, when due in
accordance with the provisions of this Indenture.
The Company will at all times designate one Person (who may be the Company
and who need not be a Security Registrar) to act as repository of a master list
of names and addresses of the Holders of the Registered Securities. The
Corporate Trust Office of the Trustee shall act as such repository unless and
until some other Person is, by written notice from the Company to such office or
agency and each Security Registrar, designated by the Company to act as such.
The Company shall cause each Security Registrar to furnish to such repository,
on a current basis, such information as to all registrations of transfer and
exchanges effected by such Security Registrar, as may be necessary to enable
such repository to maintain the master list of Registered Holders on as current
a basis as is practicable.
24
No Person shall at any time be designated as or act as a Security Registrar
unless such Person is at such time empowered under applicable law to act as such
and duly registered to act as such under and to the extent required by
applicable law and regulations.
Every Registered Security presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Company or the Trustee) be
duly endorsed by, or be accompanied by a written instrument of transfer or
exchange in form satisfactory to the Company and the Trustee duly executed by,
the Holder or his attorney duly authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities, other than exchanges pursuant to Section
304, 906 or 1107 not involving any registration of transfer. No service charge
shall be made for any such transaction.
The Company shall not be required (1) to exchange or register a transfer of
any Securities of any series for a period of 15 days next preceding the
selection of Securities of that series to be redeemed, (2) to exchange or
register a transfer of any Registered Securities selected, called or being
called for redemption or surrendered for repayment in whole or in part except,
in the case of any Security to be redeemed or repaid in part, the portion
thereof not so to be redeemed or repaid, or (3) to exchange any Bearer Security
so selected for redemption, except that such a Bearer Security may be exchanged
for a Registered Security of that series and like tenor; provided, however, that
such Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or
contemplated in Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 906, and 1107 for the Securities of, and no
transfer of a Global Security of any series may be registered to, any Person
other than the Depositary for such Security or its nominee unless (1) such
Depositary (A) notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or (B) ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (2) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so exchangeable and the transfer thereof so registerable, or
(3) there shall have occurred and be continuing an Event of Default, or an event
which after notice or lapse of time would be an Event of Default, with respect
to the Securities evidenced by such Global Security. Upon the occurrence in
respect of any Global Security of any series of any one or more of the
conditions specified in clauses (1), (2) or (3) of the preceding sentence or
such other conditions as may be specified as contemplated in Section 301 for
such series, such as that the Securities of such series may be exchanged for
Bearer Securities, such Global Security may be exchanged for Registered
Securities in the names of, and the transfer of such Global Security may be
registered to, such Persons (including Persons other than the Depositary with
respect to such series and its nominees), as such Depositary shall direct.
Notwithstanding any other provision of this Indenture, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security shall also be a Global Security and
shall bear the legend specified in Section 203 except for any Security
authenticated and delivered in exchange for, or upon registration of transfer
of, a Global Security pursuant to the preceding sentence.
25
Section 306. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or Coupon shall become
mutilated or defaced or be destroyed, lost or stolen, in the absence of notice
to the Company or the Trustee that such Security or Coupon has been acquired by
a bona fide purchaser, the Company may in its discretion execute, and the
Trustee, upon a Company Request, shall authenticate and deliver, a new
Registered Security, if such surrendered Security was a Registered Security, or
a new Bearer Security with Coupons corresponding to the Coupons appertaining to
the surrendered Security, if such surrendered Security was a Bearer Security,
which shall be of the same series and of like tenor and aggregate principal
amount, bearing a number or other distinguishing symbol not contemporaneously
Outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to the Company
and to the Trustee (and any agent of the Company or Trustee, if requested by the
Company) such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security, or of such Coupon appurtenant thereto, and of the ownership
thereof.
Upon the issuance of any substitute Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Company in its discretion may instead of issuing a
substitute Security pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security), if the applicant
for such payment shall furnish to the Company and to the Trustee (and any agent
of the Company or the Trustee, if requested by the Company or the Trustee) such
security or indemnity as any of them may require to indemnify and defend and to
save each of them harmless, and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substituted Security (and every appurtenant Coupon, if any) of any
series issued pursuant to the provisions of this Section by virtue of the fact
that any such Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the limitations of
rights set forth in) this Indenture equally and proportionately with any and all
other Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, defaced, destroyed, lost or stolen
Securities and shall preclude (to the extent lawful) any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
26
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified for a particular series pursuant to Section
301, interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered in the Security Register at the close of business on
the Record Date for such interest either (i) by check mailed to the address of
such Person as referenced in the Security Register or (ii) by wire transfer to
an account designated by such Person pursuant to an arrangement that is
satisfactory to the Company and the Trustee. Unless otherwise provided pursuant
to Section 301, the Company shall pay to the Trustee or the Paying Agent the
aggregate amount of interest in immediately available funds by 10:00 A.M. New
York City time on the Interest Payment Date. The Trustee shall not be held
responsible or liable for any loss resulting from a failure of the federal funds
wire system or any other occurrence beyond its control in connection with wire
transfers made pursuant to this Section 307.
Except as otherwise specified for a particular series pursuant to Section
301, (i) interest on any Bearer Securities shall be paid only against
presentation and surrender of the Coupons for such interest installments as are
evidenced thereby as they mature and (ii) the accreted amount, if any, with
respect to Bearer Securities which constitute Original Issue Discount Securities
shall be paid only against presentation and surrender of such Securities; in
either case at the office of a Paying Agent located outside the United States of
America, unless the Company shall have otherwise instructed the Trustee in
writing, provided that the Company furnishes the Trustee with an Opinion of
Counsel stating that any such instruction for payment in the United States of
America does not cause any Bearer Security to be treated as a
"registration-required obligation" under United States laws and regulations. The
interest on any temporary Bearer Security shall be paid, as to any installment
of interest evidenced by a Coupon attached thereto, only upon presentation and
surrender of such Coupon and, as to other installments of interest, only upon
presentation of such Security for notation thereon of the payment of such
interest. If at the time a payment of principal of or interest on a Bearer
Security or Coupon shall become due, the payment of the full amount so payable
at the office or offices of all the Paying Agents outside the United States is
illegal or effectively precluded because of the imposition of exchange controls
or other similar restrictions on the payment of such amount in United States
dollars, then the Company may instruct the Trustee in writing to make such
payments at a Paying Agent located in the United States of America, provided
that the Company furnishes the Trustee with an Opinion of Counsel stating that
provision for such payment in the United States of America would not cause such
Bearer Security to be treated as a "registration-required obligation" under
United States laws and regulations.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a special record date ("Special Record Date") for the payment
of such Defaulted Interest which shall be
27
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Registered Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry all the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the Person in whose name any Registered Security shall be
registered in the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, any premium or interest on, such
Registered Security and for all other purposes; and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any Coupon as the
absolute owner of such Bearer Security or Coupon for the purpose of receiving
payment thereof or on account
28
thereof and for all other purposes whatsoever, whether or not such Bearer
Security or Coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
All payments so made to any such Person or bearer, or upon his order, shall
be valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
Section 309. Cancellation.
All Securities and Coupons surrendered for the purpose of payment,
redemption, registration of transfer or exchange, or for credit against any
payment in respect of a sinking or analogous fund, if surrendered to the
Company, any Security Registrar, any Paying Agent or any other agent of the
Company or any agent of the Trustee, shall be delivered to the Trustee and
promptly canceled by it or, if surrendered to the Trustee, shall be promptly
canceled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy canceled Securities and Coupons held by it and, in the case of
canceled Securities, deliver a certificate of destruction to the Company. If the
Company shall acquire any of the Securities, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated in Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 301, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of (and premium, if any, on) and interest, if any, on
any Registered or Bearer Security of such series will be made in the Currency in
which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 311 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (and premium,
if any, on) or interest, if any, on such Registered Securities in any Currency
which may be designated for such election by delivering to the Trustee for such
series of Registered Securities a written election with signature guarantees and
in the applicable form established pursuant to Section 301, not later than the
close of business on the Election Date immediately preceding the applicable
payment date. If a Holder so elects to receive such payments in any such
Currency, such election will remain in effect for such Holder or any transferee
of such Holder until changed by such
29
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the net payment date to
be effective for the payment to be made on such payment date and no such change
of election made be made with respect to payments to be made on any Registered
Security of such series with respect to which (i) an Event of Default has
occurred, (ii) the Company has deposited funds pursuant to Articles Four or
Fourteen, (iii) a notice of redemption has been given by the Company or (iv) a
notice of option to elect repayment has been given by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in subsection (a) above. The Trustee for each such series
of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable, but not later than two Business Days after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, not later than the fourth Business Day after the Election Date for
each payment date for Registered Securities of any series, the Exchange Rate
Agent will deliver to the Company a written notice specifying, in the Currency
in which Registered Securities of such series are payable, the respective
aggregate amounts of principal of (and premium, if any, on) and interest, if
any, on the Registered Securities to be paid on such payment date, specifying
the amounts in such Currency so payable in respect of the Registered Securities
as to which the Holders of Registered Securities denominated in any Currency
shall have elected to be paid in another currency as provided in paragraph (b)
above. If the election referred to in paragraph (b) above has been provided for
pursuant to Section 301 and if at least one Holder has made such election, then,
unless otherwise specified pursuant to Section 301, on the second Business Date
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officer's Certificate in
respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of registered Securities who have elected
payment in a Currency as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate in effect on the
third Business Day (the "Valuation Date") immediately preceding each payment
date, and such determination shall be conclusive and binding for all purposes,
absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any, on) and interest, if
any, on the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign Currency was used
(the "Conversion Date"), the Dollar shall be the Currency of payment for use on
each such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustee or any Paying Agent to
the Holders of such Securities with respect to such payment date shall be, in
the case of a Foreign Currency other than a currency unit, the Dollar Equivalent
of the Foreign Currency or, in the
30
case of a currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in subsection (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent payment date
by converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Exchange Rate Agent and subject to the provisions of paragraph (h) below shall
be the sum of each amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 311 the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency of the
relevant currency shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are consolidated
into a single Currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single Currency equal to
the sum of the respective Specified Amounts of such consolidated Component
Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall thereafter
be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more Currencies, the Specified Amount
of such Component Currency shall be replaced by amounts of such two or more
Currencies, having an aggregate dollar Equivalent Value at the Market
Exchange Rate on the date of such replacement equal to the Dollar
Equivalent of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division and such amounts
shall thereafter be Specified Amounts and such currencies shall thereafter
be Component Currencies. If, after the Conversion Date of the relevant
currency unit, including, but
31
not limited to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect to
any Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculation the Dollar Equivalent of the Currency
Unit, be converted into Dollars at the Market Exchange Rate in effect on
the Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to Section 301(11) by which the written
election referred to in subsection (b) above may be made.
All decisions and determinations by the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to the ECU or any other
currency unit in which Securities are denominated or payable, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date and the Specified Amount of each
Component Currency on the Conversion Date. In the event the Company determines
in good faith that any subsequent change in any Component Currency as set forth
in the Company will similarly give written notice to the Trustee of the
appropriate series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determined the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 312. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so long as
the Securities of any series (i) are denominated in a Currency other than
Dollars or (ii) may be payable in a Currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will appoint and maintain with respect to each such series of Securities, or as
so required, at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange determinations at the
time
32
and in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 311.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company, with a copy to the
Trustee accepting such appointment executed by the successor Exchange Rate
Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
Section 313. Compliance with Certain Laws and Regulations.
If any Bearer Securities are to be issued in any series of Securities, the
Company will use reasonable efforts to provide for arrangements and procedures
designed pursuant to then applicable laws and regulations, if any, to ensure
that Bearer Securities are sold or resold, exchanged, transferred and paid only
in compliance with such laws and regulations and without adverse consequences to
the Company or the Trustee.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, upon a Company request and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and all
Coupons appertaining thereto (other than (i) Securities and Coupons which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Xxxxxxx 000, (xx) Securities and Coupons for whose payment
money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the
33
Company or discharged from such trust, as provided in Section 1003, (iii)
Coupons appertaining to Bearer Securities surrendered in exchange for
Registered Securities and maturing after such exchange, surrender of which
is not required or has been waived as provided in Section 305, and (iv)
Coupons appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, surrender of which has been
waived as provided in Section 1106) have been delivered to the Trustee for
cancellation; or
(B) all such Securities, and, in the case of (i) and (ii) below, any
Coupons appertaining thereto, not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section 401, the obligations of the Trustee under Sections 305, 306, 402
and 1002 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) or Depositary as the
Trustee may determine, to the Holders of the particular Securities of such
series for the payment or redemption of which such money has been deposited with
the
34
Trustee, of all sums due and to become due thereon for principal and any premium
and interest.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", with respect to Securities of a particular series
wherever used herein, means any one of the following events and such other
events as may be established with respect to the Securities of such series as
contemplated in Section 301, continued for the period of time, if any, and after
the giving of notice, if any, designated in this Indenture or as may be
established with respect to such Securities as contemplated in Section 301, as
the case may be, unless such event is either inapplicable or is specifically
deleted or modified in, or pursuant to, the applicable Board Resolution or in
the supplemental indenture under which such series of Securities is issued, as
the case may be, as contemplated in Section 301:
(1) default in the payment of the principal of, or any premium on, any
of the Securities of such series as and when the same shall become due and
payable either at Stated Maturity, upon redemption, by declaration or
otherwise; or
(2) default in the payment of any installment of interest, if any,
upon any of the Securities of such series as and when it shall become due
and payable, and continuance of such default for a period of 30 days; or
(3) default in the payment of any sinking fund payment, when and as
due and payable by the terms of the Securities of such series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in the Securities of such series in any resolution
of the Board of Directors of the Company authorizing the issuance of that
series of Securities, in this Indenture with respect to such series or in
any supplemental indenture with respect to such series (other than a
covenant or agreement a default in the performance of which or a breach of
which is elsewhere in this Section 501 specifically dealt with or which has
expressly been included in this Indenture and designated as being solely
for the benefit of a series of Securities other than such series), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed in excess of $20,000,000 of the Company or
any Significant Subsidiary (including a default with respect to Securities
of any series other
35
than such series) or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
such indebtedness for money borrowed by the Company or any Significant
Subsidiary (including this Indenture), whether such indebtedness now exists
or shall hereafter be created, and, if not already matured in accordance
with its terms, such indebtedness has been accelerated without such
involuntary acceleration having been rescinded or annulled within a period
of 15 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of such series a written notice specifying such
default and requiring the Company to cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder; provided, however, that, if prior to the entry of judgment in
favor of the Trustee for the payment of the Securities of such series, such
default shall be remedied or cured by the Company or waived by the holders
of such indebtedness, then the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon remedied, cured or waived
without any action on the part of the Trustee or any of the Holders; or
(6) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for all or
substantially all of its property or ordering the winding up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days; or
(7) the Company shall commence a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to
the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or
for all or substantially all of its property, or make any general
assignment for the benefit of creditors, or the admission by the Company in
writing of its inability to pay its debts generally as they become due; or
(8) any other Event of Default provided with respect to Securities of
such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then, and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Outstanding Securities of such series, by
notice in writing to the Company (and to the Trustee if given by Holders), may
declare the entire principal amount (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms of such series) of all of the Securities of such series
and any premium and interest
36
accrued thereon to be due and payable immediately, and upon any such declaration
such principal amount (or specified amount) and any premium and interest accrued
thereon shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of the Securities of any series shall have been so declared due and
payable, and before any judgment or decree for the payment of money due shall
have been obtained or entered as hereinafter provided,
(1) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay the premium and all matured installments of interest, if
any, upon all the Securities of such series and the principal of any and
all Securities of such series which shall have become due otherwise than by
such declaration of acceleration (with premium and interest upon such
principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue premium and installments of interest, if
any, at the Overdue Rate applicable to such series to the date of such
payment or deposit), and all amounts payable to the Trustee pursuant to
Section 607, and
(2) all Events of Default under the Indenture with respect to such
series of Securities other than the nonpayment of the principal of such
Securities which shall have become due by such declaration of acceleration,
shall have been cured, waived or otherwise remedied as provided in Section
513,
then and in every such case the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of such series, by written notice
to the Company and to the Trustee, may rescind and annul such declaration and
its consequences with respect to such series, but no such rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company and
the Trustee shall be restored respectively to their former rights and positions
thereunder.
37
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
any of the Securities of any series as and when such interest becomes due
and payable, and such default continues for a period of 30 days, or
(2) a default is made in the payment of the principal of, and any
premium on, any of the Securities of any series as and when the same
becomes due and payable, whether upon Stated Maturity of the Securities of
such series or upon redemption or by declaration or otherwise, or
(3) default is made in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due by the terms of
the Securities of any series,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of the Securities of such series the whole amount then
due and payable on all Securities of such series for principal and any premium
and interest as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue premium and installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the Trustee
pursuant to Section 607.
Until such demand is made by the Trustee, the Company may pay the principal
of and any premium and interest on the Securities of any series to the
registered Holders, whether or not the principal of and any premium and interest
on the Securities of such series be overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
If an Event of Default with respect to Securities of any Series has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture or to enforce any
other legal or equitable right granted in this Indenture or by law.
38
Section 504. Trustee May File Proofs of Claim.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon the Securities of any
series under Title 11 of the United States Code or any other similar applicable
Federal or State law, or in case a receiver, trustee in bankruptcy or similar
official shall have been appointed for the property of the Company or such other
obligor, or in case of any other similar judicial proceedings relative to the
Company or other obligor upon the Securities of any series, or to the creditors
or property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(1) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be due and payable
with respect to such series pursuant to a declaration in accordance with
Section 502) and any premium and interest owing and unpaid in respect of
the Securities of any series, and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for any amounts payable to the Trustee pursuant to Section 607) and
of the Holders allowed in any judicial proceedings relating to the Company
or other obligor upon the Securities of any series, or to the creditors or
property of the Company or such other obligor;
(2) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or of a person performing
similar functions in comparable proceedings; and
(3) to collect and receive any money or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Holders and of the Trustee on their behalf
(after deduction of costs and expenses of collection, and any further
amounts payable to the Trustee pursuant to Section 607 and incurred by it);
and any trustee in bankruptcy, receiver or other similar official is hereby
authorized by each of the Holders to make payments to the Trustee and, in
the event that the Trustee shall consent to the making of payments directly
to the Holders, to pay to the Trustee costs and expenses of collection and
any further amounts payable to the Trustee pursuant to Section 607 and
incurred by lt.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any Holder
any plan or reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding,
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
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Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, or under the
Securities of any series, may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506. Application of Moneys Collected by Trustee.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in the case of distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities or Coupons in respect of which
money has been collected and stamping (or otherwise noting) thereon the payment,
or issuing Securities in reduced principal amounts in exchange for the presented
Securities of like series and tenor if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of amounts all due to the Trustee under Section
607;
SECOND: In case the principal of the Outstanding Securities in respect
of which money has been collected shall not have become and be then due and
payable, to the payment of interest, if any, on the Securities in default
in the order of the Maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee and to the extent permitted by applicable law) upon the overdue
installments of interest at the Overdue Rate applicable to such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference; provided, however, that such payments shall
be made subject to the provisions of Article Fourteen hereunder, if
applicable;
THIRD: In case the principal of the Outstanding Securities in respect
of which money has been collected shall have become and shall be then due
and payable by declaration or otherwise, to the payment of the whole amount
then owing and unpaid upon such Securities for principal and, any premium
and interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee and to the extent
permitted by applicable law) upon overdue premium and installments of
interest, if any, at the Overdue Rate applicable to such Securities; and in
case such money shall be insufficient to pay in full the whole amount so
due and unpaid upon such Securities, then to the payment of such principal
and any premium and interest, without preference or priority of principal
over premium and interest, if any, or of interest, if any, over principal
and premium, if any, or of premium, if any, over principal and interest, if
any, or of any installment of interest, if any, over any other installment
of interest, if any, or of any Security over any other Security, ratably to
the aggregate of such principal and accrued and unpaid premium and
interest, if any; provided, however, that such payments shall be made
subject to the provisions of Article Fourteen hereunder, if applicable; and
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FOURTH: To the payment of the remainder, if any, to the Company or as
the Company may direct.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right by virtue or
by availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee in
bankruptcy, receiver or other similar official or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
default with respect to Securities of such series and of the continuance
thereof, as hereinbefore provided;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute such action, suit or proceedings in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has neglected or refused to institute any such
action, suit or proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period pursuant to Section 512;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the Trustee,
that no one or more Holders of any Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder of Securities, or to obtain
or to seek to obtain priority or preference over any other Holder or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities. For the
protection and enforcement of the provisions of this Section, each Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307) any
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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Section 509. Restoration of Rights and Remedies.
In case the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Holder, then and in every such case the Company, the Trustee and the
Holders shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company, the Trustee and
the Holders shall continue as though no such proceedings had been taken.
Section 510. Rights and Remedies Cumulative.
Except as provided in Section 507 and except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right,
power or remedy accruing upon any Event of Default occurring and continuing as
aforesaid shall impair any such right, power or remedy or shall be construed to
be a waiver of any such Event of Default or an acquiescence therein. Subject to
Section 507, every power and remedy given by this Indenture or by law to the
Trustee or to the Holders of any or all series, as the case may be, may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of such series or all series, as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee by this
Indenture with respect to Securities of such series; provided, however, that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee (subject to the requirements of the Trust Indenture
Act) shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee shall
determine that the action or proceedings so directed would involve the
Trustee in personal liability or be unduly prejudicial to the Holders not
joining therein.
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Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Holders.
Section 513. Waiver of Past Defaults.
Prior to the declaration of the acceleration of the Maturity of the
Securities of any particular series, the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default or Event of Default with respect to such series and its consequences,
except a default not theretofore cured
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected as provided in Section 902.
In the case of any such waiver, the Company, the Trustee and the Holders of
the Securities of each series affected shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereby shall be deemed to have agreed, that in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, however,
that neither this Section 514 nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of
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any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to any series of Securities
has occurred and is continuing, the Trustee shall exercise with respect to the
Securities of such series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy
44
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
The Trustee shall transmit notices of default to the Holders in accordance
with section 315(b) and related provisions of the Trust Indenture Act. For the
purpose of this Section 602, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any, on) or
interest, if any, on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series.
Section 603. Certain Rights of the Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by a Company Order or Company Request (unless
other evidence in respect thereof be herein specifically prescribed) and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith and in
reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request, order or direction;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Outstanding Securities
of any series affected; but the Trustee, in its discretion may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representation as to the validity or
sufficiency of this Indenture or of the Securities, provided that the Trustee
shall not be relieved of its duty to authenticate Securities only as authorized
by this Indenture. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of any of the Securities
or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent and, subject to the provisions of
the Trust Indenture Act, may otherwise deal with the Company and receive,
collect, hold and retain collections from the Company with the same rights it
would have if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
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Section 606. Money Held in Trust.
Subject to the provisions of Section 1003, all money received by the
Trustee or any Paying Agent, all money and Government Obligations deposited with
the Trustee pursuant to Section 1302 or Section 1303 and all money received by
the Trustee in respect of Government Obligations deposited with the Trustee
pursuant to Section 1302 or Section 1303, shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any Paying Agent shall be
under any liability for interest on any money received by it hereunder except as
otherwise agreed by the Company. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such money shall be paid
from time to time in accordance with a Company Order.
Section 607. Compensation and Reimbursement.
The Company covenants and agrees
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability, or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this Indenture or the trusts hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim for which it may
seek indemnity. Failure by the Trustee to so promptly notify the Company,
however, shall not relieve the Company of its obligations under this paragraph
except to the extent such failure shall have materially prejudiced the Company.
The Company may at its option defend the claim and, if it so defends, then the
Trustee shall cooperate in the defense and the Company shall not be responsible
for any expenses of the Trustee's counsel thereafter. The Company need not pay
for any settlement made without its consent.
The obligations of the Company under this Section 607 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior
47
to that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or (7), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
Section 608. Right to Rely on Officers' Certificate.
Subject to the requirements of the Trust Indenture Act, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
Section 609. Eligibility.
The Trustee for each series of Securities hereunder shall at all times be a
Person organized and doing business under the laws of the United States of
America or of any State or the District of Columbia, having a combined capital
and surplus of at least $50,000,000, and eligible under the provisions of the
Trust Indenture Act. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person at any time shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor Trustee with respect to such series pursuant
to any of the provisions of this Section 610 shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 611.
(b) The Trustee may resign at any time with respect to one or more or all
series of Securities by giving 90 days written notice of resignation to the
Company. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor Trustee with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee. If no successor Trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee, or any Holder who has been
48
a bona fide Holder of a Security of the applicable series for at least six
months may, subject to the requirements of the Trust Indenture Act, on behalf of
itself and all others similarly situated, petition any such court for the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor Trustee.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may at any time remove the Trustee with
respect to Securities of such series and appoint a successor Trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor Trustee so appointed and to the Company the evidence
provided for in Section 104 of the action in that regard taken by the Holders.
(d) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security of a
relevant series for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 609 with respect to any series of Securities and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security of a relevant
series for at least six months; or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (i) the Company may remove the Trustee with respect to
the applicable series of Securities (or all series, if required) and appoint a
successor Trustee for such series by written instrument, in duplicate, executed
by authority of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee, or
(ii) subject to the requirements of the Trust Indenture Act, any Holder who has
been a bona fide Holder of a Security of such series for at least six months may
on behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee with respect to such series.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of the Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
for that series of Securities. If, within one year after such resignation,
removal or incapacity, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the
49
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and supersede the successor Trustee appointed by the
Company with respect to such series. If no successor Trustee with respect to
such series shall have been so appointed by the Company or the Holders of such
series and accepted appointment in the manner hereinafter provided, subject to
Section 514, any Holder who has been a bona fide Holder of a Security of that
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
Section 611. Acceptance of Appointment by Successor.
Any successor Trustee appointed as provided in Section 610 shall execute,
acknowledge and deliver to the Company and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all or any applicable
series shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, duties
and obligations with respect to such series of its predecessor Trustee
hereunder, with like effect as if originally named as Trustee for such series
hereunder; but, nevertheless, on the written request of the Company or of the
successor Trustee, upon payment (or due provision therefor) of any amounts then
due it pursuant to Section 607, the Predecessor Trustee ceasing to act shall,
subject to Section 1003, pay over to the successor Trustee all money at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor Trustee all such rights, powers, duties and obligations. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 607.
If a successor Trustee is appointed with respect to the Securities of one
or more (but not all) series, the Company, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to any series of Securities shall accept
appointment as provided in this Section unless at the time of such acceptance
such successor Trustee shall, with respect to such series, be qualified under
the requirements of the Trust Indenture Act and eligible under the provisions of
Section 609.
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Upon acceptance of appointment by any successor Trustee as provided in this
Section 611, the Company shall give notice thereof to the Holders of Securities
of any series for which such successor Trustee is acting as Trustee in the
manner provided for notices to the Holders of Securities in Section 106. If the
Company fails to give such notice within ten days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Company.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such Person shall be qualified
under the requirements of the Trust Indenture Act and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee by
merger, conversion or consolidation may adopt the certificate of authentication
of any predecessor Trustee and deliver such Securities so authenticated; and, in
case at that time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of such successor to the Trustee or, if such successor to the
Trustee is a successor by merger, conversion or consolidation, in the name of
any predecessor hereunder; provided, however, that such successor shall use the
predecessor's name only in such circumstances set forth in this Section and in
all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Sections 311(a) and 311(b) of the Trust Indenture Act regarding
the collection of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities or such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each
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Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then for the purposes of this Section 614,
the combined capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 614, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 614.
Any Person into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such Person shall be otherwise eligible under this Section 614, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 614, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section 614, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein and referred
to in the within-mentioned Indenture.
Fleet National Bank,
as Trustee
By_____________________________________
As Authenticating Agent
By_____________________________________
Authorized Officer
ARTICLE SEVEN
Holders' List and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Record Date for the
Securities of any series (and on dates as specified as contemplated in Section
301 for any series of Original Issue Discount Securities which by their terms
bear interest only after Maturity), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of the Securities
of such series as of each such Record Date (and as of dates as specified as
contemplated in Section 301 of this Indenture), and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such is
furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar for Securities of a series, no such list need be furnished with
respect to such series of Securities.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Registered Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15, 1997 and on or before May 15 in each year
thereafter, so long as any Securities are Outstanding hereunder, the Trustee
shall transmit by mail to Holders of Securities of any series such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act, including, without limitation, section 313
thereof, in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Securities are
listed on any stock exchange or automatic quotation series.
Section 704. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company
is not required to file information, documents or reports pursuant to either of
said Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act, in
respect of a security listed and registered on a national securities exchange as
may be required from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit to all Holders of Securities, in the manner and to the extent
provided in Section 703, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of this Section 704 as
may be required by rules and regulations prescribed from time to time by the
Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
(whether or not affiliated with the Company), or successive consolidations or
mergers in which the Company or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of all or
substantially all the property or assets of the Company, to any other Person
(whether or not affiliated with the Company) authorized to acquire and operate
the same; provided, however, and the Company hereby covenants and agrees, that
upon any such consolidation, merger, transfer, conveyance or lease:
(1) the due and punctual payment of the principal of and any premium
and interest on all of the Securities, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Company,
shall be expressly assumed, by supplemental indenture satisfactory in form
to the Trustee, executed and delivered to the Trustee by the Person (if
other than the Company) formed by such consolidation, or into which the
Company shall have been merged, or by the Person which shall have acquired
or leased such property or assets and such person shall be organized and
existing under the laws of the United States of America or of any State or
the District of Columbia;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing;
provided, however, that a transaction will be deemed to be in violation of
this clause (2) only with respect to those series of Securities whereby
such Event of Default or such event shall have occurred and be continuing;
and
(3) the Trustee, subject to the requirements of the Trust Indenture
Act and Section 603, shall receive an Opinion of Counsel and Officers'
Certificate to the effect that such consolidation, merger, conveyance,
transfer or lease and any such assumption complies with the provisions of
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of all or substantially
all the property or assets of the Company in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter, except in the case of a lease, the
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predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
In case of any such consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
Section 803. Senior Securities to Be Secured in Certain Events
If, upon any such consolidation of the Company with, or merger of the
Company into, any other corporation, or upon any conveyance or transfer of the
property of the Company substantially as an entirety to any other Person, any
Principal Property of the Company or any share of stock or Debt of any
Significant Subsidiary owned immediately prior thereto, would become or be
subject to any Mortgage, then unless such Mortgage could be created pursuant to
Section 1004 without equally and ratably securing the Senior Securities, the
Company, prior to or simultaneously with such consolidation, merger, conveyance
or transfer, will as to such Principal Property or share of stock or Debt of any
Significant Subsidiary, secure the Senior Securities Outstanding hereunder
(together with, if the Company shall so determine, any other Debt of the Company
now existing or hereafter created which is not subordinate to the Senior
Securities, equally and ratably with (or prior to) the Debt which upon such
consolidation, merger, conveyance or transfer is to become secured as to such
Principal Property or share of stock or Debt of any Significant Subsidiary by
such Mortgage, or will cause such Senior Securities, to be so secured; provided
that for the purpose of providing such equal and ratable security the principal
amount of Original Issue Discount Securities shall mean that amount which, at
the time of making such provision of such equal and ratable security, would be
due and payable pursuant to Section 502 and the terms of such Original Issue
Discount Securities upon an declaration of acceleration of the Maturity thereof,
and the extent of such equal and ratable security shall be adjusted, to the
extent permitted by law, as and when said amount changes over time pursuant to
the terms of such Original Issue Discount Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants, agreements and
obligations of the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the
56
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default and to provide with
respect thereto for any particular periods of grace after default (which
may be shorter or longer than that allowed in the case of other defaults)
or for immediate enforcement upon such default or for any limitation of the
remedies available to the Trustee upon such default; or
(4) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided,
however, that any such addition, change or elimination (i) shall neither
(A) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with respect
to such provision or (ii) shall become effective only when there is no such
Security Outstanding; or
(5) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(8) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to change or eliminate any provision or to make
any other provisions with respect to matters or questions arising under
this Indenture or under any supplemental indenture as the Company may deem
necessary or desirable; provided, however, that such action shall not
adversely affect the interests of the Holders of the Outstanding Securities
of any series.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture (each such series voting as a single class), by act of
such Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights and
obligations of the Company and the rights of the Holders of the Securities of
such series under
57
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof, or reduce any premium thereof or change the time of payment
of any premium thereon, or reduce the rate or change the time of payment of
interest thereon, if any, or reduce any amount payable on redemption or
reduce the Overdue Rate thereof or make the principal thereof or any
premium or interest thereon, payable at any place of payment or in any
Currency other than as provided in the Security or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section 504,
or impair, if the Securities provide therefor, any right of repayment at
the option of the Holder, or impair the right to institute a suit for the
enforcement of any payment on or with respect to any Security pursuant to
Section 507; or
(2) reduce the aforesaid percentage of Outstanding Securities the
consent of the Holders of which is required for any such supplemental
indenture or for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. The preceding
sentence shall not, however, raise any inference as to whether or not a
particular series is affected by any supplemental indenture not referred to in
such sentence.
It shall not be necessary for the consent of the Holders under this Section
902 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 902, the
Company shall give notice thereof to the Holders of Securities of each series
affected thereby in the manner provided for notices to the Holders of Securities
in Section 106, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but
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shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and any such supplemental indenture shall form a part of this
Indenture for all purposes and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as in effect at the date
such supplemental indenture is executed.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture. If the Company or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company, and, upon a Company Request, authenticated and
delivered by the Trustee in exchange for the Outstanding Securities of such
series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of, and any premium and interest on, the Securities of that series in
accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will designate and maintain in the Borough of Manhattan, The
City of New York, for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
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Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in The City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal or any premium or interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of and any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal and any premium or interest so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of and
any premium or interest on the Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of the principal of or any premium or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default referred to
in clause (2) above, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
The City of New York or other place of payment, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Limitations on Secured Debt.
The Company agrees for the benefit of Holders of Senior Securities only,
that unless otherwise provided herein, the Company will not itself, and will not
permit any Subsidiary to, create, incur, issue, assume or guarantee any Debt
secured after the date of the Indenture by pledge of, or mortgage or other lien
("Mortgage") on, any Principal Property of the Company or any Significant
Subsidiary, or any shares of stock or Debt of any Significant Subsidiary without
effectively providing that the Senior Securities of all series issued pursuant
to the Indenture (together with, if the Company shall so determine, any other
Debt of the Company or such Significant Subsidiary then existing or thereafter
created which is not subordinate to the Senior Securities) shall be secured
equally and ratably with (or, at the option of the Company, prior to) such
secured Debt, so long as such secured Debt shall be so secured, unless after
giving effect thereto, the aggregate principal amount of all such secured Debt
then outstanding which would otherwise be prohibited, plus all Attributable Debt
of the Company and its Significant Subsidiaries in respect of sale and leaseback
transactions (as defined in Section 1005) occurring after the first date of
issuance of the applicable Senior Securities which would otherwise be prohibited
by the covenant described in Section 1005, would not exceed 10% of Consolidated
Net Tangible Assets.
This restriction does not apply to, and there shall be excluded in
computing secured Debt for the purpose of such restriction, Debt secured by: (i)
Mortgages existing on the date of the first issuance of Securities under this
Indenture; (ii) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Significant
Subsidiary; (iii) Mortgages in favor of the Company or any Significant
Subsidiary; (iv) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of
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America or any State thereof, or in favor of any other country, or any political
subdivision thereof, to secure partial, progress, advance or other payments
pursuant to any contract or statute; (v) Mortgages on any real or personal
property existing at the time of acquisition thereof or created within one year
of such acquisition; (vi) Mortgages to secure Debt incurred for the purpose of
financing all or any part of the purchase price or the cost or construction or
improvement of the property subject to such Mortgage, provided, however, that
(a) the principal amount of any Debt secured by such Mortgage does not exceed
100% of such purchase price or cost and (b) such Mortgage does not extend to or
cover any other property other than such item or property and any improvements
on such item; (vii) Mortgages securing industrial revenue, development or
similar bonds; (viii) Mortgages created in connection with a project financed,
or assets acquired, with, and created to secure any Nonrecourse Obligations; and
(ix) any extension, renewal, refunding or replacement (or successive extensions,
renewals, refundings or replacements), as a whole or in part, of any Mortgage
referred to in the foregoing clauses (i) to (viii), inclusive; provided,
however, that (a) such extension, renewal, refunding or replacement Mortgage
shall be limited to all or a part of the same property, shares of stock or Debt
that secured the Mortgage extended, renewed, refunded or replaced (plus
improvements on such property) and (b) the Debt secured by such Mortgage at such
time is not increased.
Section 1005. Limitations on Sales and Leasebacks.
The Company agrees for the benefit of Holders of Senior Securities only,
that unless otherwise provided herein, the Company will not itself, and will not
permit any Significant Subsidiary to, enter into any arrangement with any bank,
insurance company or other lender or investor (not including the Company or any
Significant Subsidiary) or to which any such lender or investor is a party,
providing for the leasing by the Company or any such Significant Subsidiary of
any Principal Property which has been or is to be sold or transferred by the
Company or such Significant Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
(each, a "sale and leaseback transaction") (except a lease for a temporary
period, including renewals, not exceeding three years and except leases between
the Company and a Significant Subsidiary or between Significant Subsidiaries)
unless, (i) after giving effect thereto, the aggregate amount of all
Attributable Debt with respect to all such transactions occurring after the
first date of issuance of the applicable Senior Securities and existing at such
time (other than such sales and leaseback transactions as are in compliance with
the provisions described in clause (ii) of this paragraph) plus all secured Debt
then outstanding of the Company and its Significant Subsidiaries incurred after
the first date of issuance of the applicable Senior Securities which would
otherwise be prohibited by the covenant described in Section 1004 above, would
not exceed 10% of Consolidated Net Tangible Assets; or (ii) (a) the gross
proceeds of the sale or transfer of the Principal Property leased equals or
exceeds the fair market value of such Principal Property and (b) within one year
after such sale or transfer shall have been made by the Company or by a
Significant Subsidiary, the Company or a Significant Subsidiary (1) applies or
commits to apply, all of the net proceeds to the retirement of Funded Debt of
the Company or any Significant Subsidiary (other than at maturity or pursuant to
any mandatory sinking fund payment or mandatory prepayment provision) or (2)
applies or commits to apply all of the net proceeds to the purchase of property,
facilities or equipment (other than property, facilities or equipment involved
in such sale) which will constitute Principal Property.
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Section 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 and 1005 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in aggregate principal amount of the Outstanding Senior
Securities of such series shall, by the act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 1007. Certificate of Compliance.
The Company shall deliver a certificate of compliance of the Company to the
Trustee on or before April 30 of each year pursuant to section 314(a)(4) of the
Trust Indenture Act, stating, as to each signer thereof, that,
(a) a review of the activities of the Company during such year and of the
performance under this Indenture has been made under such signer's supervision,
and
(b) to the best of such signer's knowledge, based on such review, the
Company has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such signer and the nature and status
thereof.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated in Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of the redemption at the election of the Company of
the Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed at the Redemption
Price and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
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Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to each Holder of
Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that, unless the Company defaults in making such
redemption payment, interest thereon, if any, or in the case of
Original Issue Discount Securities, the original issue discount, shall
cease to accrue on and after such date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
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(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at Company Request, by the Trustee in
the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to 10:00 A.M. New York City time on any Redemption Date, the
Company shall deposit in immediately available funds with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003 and as required by the Trust
Indenture Act) an amount of money (in the currency or units of currency in which
the Securities so called for redemption are denominated or an appropriate
equivalent thereof) sufficient to pay the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. On presentation and
surrender of such Securities for redemption in accordance with such notice, such
Securities shall be paid and redeemed by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that,
unless otherwise specified as contemplated in Section 301, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal thereof so to be redeemed shall, until
paid, bear interest from the Redemption Date at the Overdue Rate applicable to
such Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
the place specified in the notice of redemption (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
Securities of any series which are subject to a sinking fund for the
retirement of Securities of a series shall be subject to such sinking fund in
accordance with their terms and (except as otherwise specified as contemplated
in Section 301 for Securities of such series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided, however, that
such Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (1)
defeasance of the Securities of a series under Section 1302 or (2) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article, shall be applicable to the Securities of such
series, and the Company may at its option by or pursuant to a Board Resolution,
at any time, with respect to the Securities of such series, elect to have either
Section 1302 (if applicable) or Section 1303 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301 to have
this Section 1302 applied to the Outstanding Securities of a defeasible series,
the Company shall be deemed to have been discharged from its obligations with
respect to the Outstanding Securities of such series on the date the conditions
set forth in Section 1304 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium or interest on such Securities
when such payments are due, (2) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the
Trustee under Section 607, (3) the rights, powers, trusts, duties, and
immunities of the Trustee under Sections 304, 305, 306, 308, 309, 506 and 1003,
and otherwise the duty of the Trustee to authenticate Securities of such series
issued on registration of transfer or exchange and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option provided in
Section 1301 to have this Section 1302 applied to the Outstanding Securities of
any defeasible series notwithstanding the prior exercise of its option provided
in Section 1301 to have Section 1303 applied to the Outstanding Securities of
such series.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301 to have
this Section 1303 applied to the Outstanding Securities of any defeasible
series, the Company shall be released from (i) in the case of Senior Securities
of any series, its obligations under Sections 1004 and 1005 hereof or (ii) in
the case of Senior Securities or Subordinated Securities of any series, its
obligations with respect to any other covenant with respect to the Outstanding
Securities of such series on and after the date the conditions set forth in
Section
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1304 are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute an Event of Default under Section 501(4) or 501(8) (except to the
extent covenants or agreements referenced in such Sections remain applicable).
Section 1304. Conditions to Defeasance or Covenant Defeasance.
Except as expressly provided below, the following shall be the conditions
to application of either Section 1302 or Section 1303 to the Outstanding
Securities of such series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another Trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A) money in an
amount, or (B) Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient without
reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying Trustee) to pay and discharge, (i) the
principal of and any premium on and each installment of principal of and
any premium and interest on the Outstanding Securities of such series on
the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities. For this purpose, "Government
Obligations" means securities that are (x) direct obligations of the United
States of America or, if specified as contemplated in Section 301, the
government which issued the currency in which the Securities of such series
are payable, for the payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or, if specified
as contemplated in Section 301, such government which issued the currency
in which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case,
are not callable or redeemable at the option of the obligor thereof, and
shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such Government Obligation or a specific payment of
principal of or interest on any such Government Obligation held by such
custodian for the account of the holder of such depository receipt;
provided, however, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the
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specific payment of principal of or interest on the Government Obligation
evidenced by such depository receipt;
(2) No Event of Default or event which, with notice or lapse of time
or both, would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit;
(3) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to any securities of the
Company;
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound;
(5) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred;
(6) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be
delisted;
(7) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such Act or exempt from regulation thereunder;
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301;
and
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302
or the covenant defeasance under Section 1303 (as the case may be) have
been complied with.
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Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of Section 1003, all money and Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying Trustee--collectively, for purposes of this Section 1305, the
"Trustee") pursuant to Section 1304 in respect of the Outstanding Securities of
such series shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through a Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1304 or the principal and any premium and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or Government Obligations held by it as provided in Section 1304 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or Government
Obligations in accordance with this Article by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and each series of Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article until
such time as the Trustee or the Paying Agent is permitted to apply all such
money or Governmental Obligations in accordance with this Article; provided,
however, that, if the Company has made any payment of interest on or principal
of any series of Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such series of
Securities to receive such payment from the money or Government Obligations held
by the Trustee or the Paying Agent.
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ARTICLE FOURTEEN
Subordination
Section 1401. Agreement to Subordinate
The Company covenants and agrees, and each Holder of a Subordinated
Security issued hereunder, by his acceptance thereof, likewise covenants and
agrees, that all Subordinated Securities shall be issued subject to the
provisions of this Article; and each Person holding any Subordinated Security,
whether upon original issue or upon transfer, assignment or exchange thereof,
accepts and agrees that the principal of and interest (and premium, if any) on
all Subordinated Securities issued hereunder shall, to the extent and in the
manner herein set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and that the subordination is
for the benefit of the holders of the Senior Indebtedness.
Section 1402. Payments to Holders of Subordinated Securities.
In the event of (i) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets; or (ii) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy; or (iii) any assignment for the benefit of creditors
or any other marshalling of assets or liabilities of the Company, then and in
any such event specified in clause (i), clause (ii) or clause (iii) above (each
such event, if any, herein sometimes referred to as a "Proceeding"):
(1) the holders of Senior Indebtedness will be entitled to receive
payment of such Senior Indebtedness in full before the holders of
Subordinated Securities are entitled to receive any payment or distribution
of cash, securities or other property with respect to the principal of,
premium, (if any), or interest on or other obligations in respect of the
Subordinated Securities, or on account of any purchase or other acquisition
of Subordinated Securities by the Company (all such payments,
distributions, purchases and acquisitions herein referred to, individually
and collectively, as a "Subordinated Securities Payment"), and to that end
the holders of Senior Indebtedness of the Company shall be entitled to
receive, for application to the payment thereof, any Subordinated
Securities Payment which may be payable or deliverable in respect of the
Subordinated Securities in any such Proceeding; and
(2) until the Senior Indebtedness paid in full, any Subordinated
Securities Payment to which holders of Subordinated Securities would be
entitled but for this Article Fourteen will be made to holders of such
Senior Indebtedness as their interests may appear. If a Subordinated
Securities Payment is made to holders of Subordinated Securities that, due
to this Article Fourteen should not have been made to them such holders of
Subordinated Securities are required to hold it in trust for the holders of
Senior Indebtedness and pay it over to them as their interests may appear.
In the event that, notwithstanding the foregoing provisions of this Section
1402, the Trustee receives payment or distribution of assets of the Company of
any kind or
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character, before all the Senior Indebtedness of the Company is paid in full,
then and in such event, such Subordinated Securities Payment shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other person making payment or
distribution of assets of the Company for application to the payment of all
Senior Indebtedness of the Company remaining unpaid, to the extent necessary to
pay the Senior Indebtedness of the Company in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness
of the Company.
The consolidation of the Company with, or the merger of the Company into,
another person or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its properties and assets
as an entirety to another person upon the terms and conditions set forth in
Article Eight shall not be deemed a Proceeding for the purposes of this Section
1402 if the person formed by such consolidation or into which the Company is
merged or the person which acquires by conveyance or transfer such properties
and assets as an entirety, as the case may be, shall, as part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
Section 1403. No Payment When Senior Debt in Default.
The Company will not make any Subordinated Securities Payment or make any
deposit pursuant to the provisions described under "Defeasance" Article Thirteen
if (i) any Designated Senior Debt is not paid when due (after giving effect to
any applicable grace periods) or (ii) any other default on Designated Senior
Debt occurs and the maturity of such Designated Senior Debt is accelerated in
accordance with its terms unless, in either case, the default has been cured or
waived or has ceased to exist and any such acceleration has been rescinded or
such Designated Senior Debt has been discharged or paid in full; provided,
however, that the Company may make Subordinated Securities Payments or make any
deposit pursuant to the provisions described under "Defeasance" Article Thirteen
without regard to the foregoing if the Company and the Trustee receive written
notice approving such payment from the representative of the Designated Senior
Debt with respect to which either of the events set forth in clause (i) or (ii)
of the immediately preceding sentence has occurred and is continuing. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the second preceding sentence) (a "non-payment default") with respect to any
Designated Senior Debt pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such accelerations) or the expiration of any applicable grace periods,
the Company may not make Subordinated Securities Payments for a period (a
"Payment Blockage Period") commencing upon the receipt by the Trustee (with a
copy to the Company) of written notice (a "Blockage Notice") of such default
from the representative of the holders of such Designated Senior Debt specifying
an election to effect a Payment Blockage Period and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated (i) by written notice
to the Trustee and the Company from the Person or Persons who gave such Blockage
Notice, (ii) because the default giving rise to such Blockage Notice is no
longer continuing or (iii) because Designated Senior Debt has been discharged or
repaid in full). Notwithstanding the provisions described in the immediately
preceding sentence, unless an event described in clause (i) or (ii) of the first
sentence of this paragraph has occurred, the Company may resume payments on the
Subordinated Securities after the end of such Payment Blockage Period. The
Subordinated Securities shall not be subject to more than one Payment Blockage
Period in any consecutive 360-day period. For all purposes of this paragraph, no
non-payment default with respect to Designated Senior Debt that existed or
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was continuing on the date of the commencement of any Payment Blockage Period
with respect to the Designated Senior Debt initiating such Payment Blockage
Period will be, or can be, made the basis for the commencement of a second
Payment Blockage Period, unless such default has been cured or waived for a
period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, the Company shall make
any Subordinated Securities Payment to the Trustee or any Holder prohibited by
the foregoing provisions of this Section 1403, then and in such event, such
Subordinated Securities Payment shall be paid over and delivered forthwith to
the holders of the Senior Indebtedness of the Company remaining unpaid, to the
extent necessary to pay in full all the Senior Indebtedness of the Company.
If payment of the Notes is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of Designated Senior
Debt or the representative of such holders of the acceleration.
The provisions of this Section 1403 shall not apply to any Subordinated
Securities Payment with respect to which Section 1402 would be applicable.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing provisions of this Section,
shall be received by the Trustee under this Indenture or the Holders of the
Subordinated Securities before all Senior Indebtedness is paid in full or
provision is made for such payment in accordance with its terms, and if such
fact shall, at or prior to the time of such payment or distribution, have been
known to the Trustee, then such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the representative of
the holders of such Senior Indebtedness, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, as their respective interest may appear, for
application to the payment of all Senior Indebtedness remaining unpaid until all
such Senior Indebtedness shall have been paid in full in accordance with its
distribution to or for the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article with respect to
the Subordinated Securities) to the payment of all Senior Indebtedness which may
at the time be outstanding; provided that (i) the Senior Indebtedness is assumed
by the new corporation, if any, resulting from any such arrangement,
reorganization or readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered by such
arrangement, reorganization or readjustment. The consolidation of the Company
with, or the merger of the Company with or into, another corporation or the
liquidation or dissolution of the Company following the conveyance or transfer
of all or substantially all of its assets to another corporation upon the terms
and conditions provided in Article Eight shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section if
such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article Eight.
Nothing in this Section shall apply to claims of, or payments to, the Trustee
73
under or pursuant to Article Six, except as expressly provided therein. This
Section shall be subject to the further provisions of Section 1406.
Section 1404. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Subordinated Securities subject to the provisions of Sections 1402 and 1403
shall be subrogated (equally and ratably with the holders of all obligations of
the Company which by their express terms are subordinated to Senior Indebtedness
of the Company to the same extent as the Subordinated Securities are
subordinated and which are entitled to like rights of subrogation) to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior
Indebtedness until the principal of and interest on such Subordinated Securities
shall be paid in full; and for the purpose of such subrogation, no payments of
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of such Subordinated Securities or the Trustee
on their behalf would be entitled except for the provisions of this Article, and
no payment over pursuant to the provisions of this Article to the holders of
Senior Indebtedness by Holders of such Subordinated Securities or the Trustee on
their behalf shall, as between the Company, its creditors other than holders of
Senior Indebtedness and the Holders of such Subordinated Securities, be deemed
to be a payment by the Company to or on account of the Senior Indebtedness; and
no payments or distributions of cash, property or securities to or for the
benefit of the Holders pursuant to the subrogation provision of this Article,
which would otherwise have been paid to the holders of Senior Indebtedness,
shall be deemed to be a payment by the Company to or for the account of such
Securities. The provisions of this Article are intended solely for the purpose
of defining the relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Subordinated Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Indebtedness, and the Holders of
the Subordinated Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Subordinated Securities the
principal of and interest on the Subordinated Securities and the amounts owed as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights against the Company of the
Holders of the Subordinated Securities and creditors of the Company other than
the holders of Senior Indebtedness, nor shall anything herein or therein prevent
the Holder of any Subordinated Security or the Trustee on his behalf from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Sections 601 and 603,
and the Holders of the Subordinated Securities shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
insolvency, bankruptcy, dissolution, winding-up, liquidation, arrangement or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders of the
Subordinated Securities for the
74
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
Section 1405. Authorization by Holders of Subordinated Securities.
Each Holder of a Subordinated Security by his acceptance thereof authorizes
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1406. Notice to Trustee.
The Company shall give prompt written notice to the Trustee and to any
Paying Agent of any fact known to the Company which would prohibit the making of
any payment of moneys to or by the Trustee or any paying agent in respect of the
Subordinated Securities pursuant to the provisions of this Article. Regardless
of anything to the contrary contained in this Article or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any Senior Indebtedness or of any default or event of default with respect to
any Senior Indebtedness or of any other facts which would prohibit the making of
any payment of moneys to or by the Trustee in respect of the Subordinated
Securities unless and until the Trustee shall have received notice in writing at
its Corporate Trust Office to that effect signed by an officer of the Company,
or by a holder or agent of a holder of Senior Indebtedness who shall have been
certified by the Company or otherwise established to the reasonable satisfaction
of the Trustee to be such holder or agent, or by the trustee under any indenture
pursuant to which Senior Indebtedness shall be outstanding, and, prior to the
receipt of any such written notice, the Trustee shall, subject to Sections 601
and 603, be entitled to assume that no such facts exist; provided, that if on a
date at least two Business Days prior to the date upon which by the terms hereof
any such moneys shall become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any Security) the
Trustee shall not have received with respect to such moneys the notice provided
for in this section, then, regardless of anything herein to the contrary, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or after such prior
date.
Regardless of anything to the contrary herein (but subject, in the case of
clause (a) of this paragraph, to Section 1402), nothing shall prevent (a) any
payment by the Company or the Trustee to the Holders of Subordinated Securities
of amounts in connection with a redemption of Subordinated Securities if (i)
notice of such redemption has been given pursuant to Article Eleven prior to the
receipt by the Trustee of written notice as aforesaid, and (ii) such notice of
redemption is given not earlier than 60 days before the redemption date, or (b)
any payment by the Trustee to the Holders of Subordinated Securities of amounts
deposited with it pursuant to Section 1302.
Subject to Sections 601 and 603, the Trustee shall be entitled to rely on
the delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or other representative on behalf of
such holder) to establish that
75
such notice has been given by a holder of Senior Indebtedness or a trustee or
other representative on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, and, if such
evidence is not furnished, the Trustee may defer any Payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 1407. Trustee's Relation to Senior Indebtedness
The Trustee and any agent of the Company or the Trustee shall be entitled
to all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Indebtedness and
nothing in the Trust Indenture Act or in this Indenture shall deprive the
Trustee or any such agent of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 607.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Sections 601 and 603, the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall in good faith pay over or deliver to
Holders of Subordinated Securities, the Company or any other Person moneys or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article or otherwise.
Section 1408. No Impairment of Subordination.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Section 1409. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money or the proceeds of U.S. Government Obligations held in trust under Article
Thirteen by the Trustee for the payment of principal of, premium, if any, and
interest on the Subordinated Securities shall not be subordinated to the prior
payment of any Senior Indebtedness or subject to the restrictions on this
Article Fourteen, and none of the Trustee or the holders of the Subordinated
Securities shall be obligated to pay over any such amount to the Company or any
holder of Senior Indebtedness of the Company or any other creditor of the
Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CARLISLE COMPANIES INCORPORATED
By _____________________________
Title:
Attest:___________________________
By _______________________________
Title:
FLEET NATIONAL BANK
By ______________________________
Attest:
By _______________________________
Title:
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of _____________________, 1996, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is ________________ of Carlisle Companies Incorporated, one of
the corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he/she signed his/her name
thereto by like authority.
[NOTARIAL SEAL]
___________________________________
Notary Public
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ____day of ______________________, 1996, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he/she is ________________ of Fleet National Bank, one of the
corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
[NOTARIAL SEAL]
___________________________________
Notary Public
79
