Exhibit 4.1
================================================================================
XXXXX & XxXXXXXX COMPANIES INC.,
Issuer
AND
THE BANK OF NEW YORK,
Trustee
------------------------------------
INDENTURE
Dated as of July 14, 2004
------------------------------------
Senior Debt Securities
================================================================================
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
---------------------- ----------------
310(a)........................................................ 7.09
310(b)........................................................ 7.08
7.10
310(c)........................................................ Inapplicable
311(a)........................................................ 713(a)
311(b)........................................................ 713(b)
311(c)........................................................ Inapplicable
312(a)........................................................ 5.01
5.02(a)
312(b)........................................................ 5.02(b)
312(c)........................................................ 5.02(c)
313(a)........................................................ 5.04(a)
313(b)........................................................ 5.04(b)
313(c)........................................................ 5.04(a)
5.04(b)
313(d)........................................................ 5.04(c)
314(a)........................................................ 5.03
314(b)........................................................ Inapplicable
314(c)........................................................ 13.06
314(d)........................................................ Inapplicable
314(e)........................................................ 13.06
314(f)........................................................ Inapplicable
315(a)........................................................ 7.01(a)
7.02
315(b)........................................................ 6.07
315(c)........................................................ 7.01
315(d)........................................................ 7.01(b)
7.01(c)
315(e)........................................................ 6.07
316(a)........................................................ 6.06
8.04
316(b)........................................................ 6.04
316(c)........................................................ 8.01
317(a)........................................................ 6.02
317(b)........................................................ 4.03
318(a)........................................................ 13.08
__________________________________
* This Cross-Reference Table does not constitute part of the Indenture
and shall not have any bearing on the interpretation of any of its
terms or provisions.
TABLE OF CONTENTS
Page
----
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definition of Terms....................................1
Affiliate..............................................1
Authenticating Agent...................................2
Bankruptcy Law.........................................2
Board of Directors.....................................2
Board Resolution.......................................2
Business Day...........................................2
Company ...............................................2
Corporate Trust Office.................................2
Custodian..............................................2
Default................................................2
Depositary.............................................2
Event of Default.......................................2
Global Security........................................3
Governmental Obligations...............................3
"herein", "hereof" and "hereunder".....................3
Indebtedness...........................................3
Indenture..............................................4
Interest Payment Date..................................4
Officers' Certificate..................................4
Opinion of Counsel.....................................4
Outstanding............................................4
Person.................................................4
Predecessor Security...................................4
Responsible Officer....................................5
Securities.............................................5
Securityholder.........................................5
Significant Subsidiary.................................5
Subsidiary.............................................5
Trustee................................................5
Trust Indenture........................................5
Voting Stock...........................................5
i
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION
AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities....................6
SECTION 2.02 Form of Securities and Trustee's Certificate...........8
SECTION 2.03 Denominations: Provisions for Payment.................8
SECTION 2.04 Execution and Authentications..........................9
SECTION 2.05 Registration of Transfer and Exchange.................11
SECTION 2.06 Temporary Securities..................................12
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.......12
SECTION 2.08 Cancellation..........................................13
SECTION 2.09 Benefits of Indenture.................................13
SECTION 2.10 Authenticating Agent..................................13
SECTION 2.11 Global Securities.....................................14
SECTION 2.12 Cusip Numbers.........................................15
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption............................................16
SECTION 3.02 Notice of Redemption..................................16
SECTION 3.03 Payment Upon Redemption...............................17
SECTION 3.04 Sinking Fund..........................................17
SECTION 3.05 Satisfaction of Sinking Fund Payments with
Securities.........................................17
SECTION 3.06 Redemption of Securities for Sinking Fund.............18
ARTICLE IV.
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest............18
SECTION 4.02 Maintenance of Office or Agency.......................18
SECTION 4.03 Paying Agents.........................................19
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee......20
SECTION 4.05 Compliance with Consolidation Provisions..............20
SECTION 4.06. Limitation on Liens on Stock of Significant
Subsidiaries.......................................20
SECTION 4.07 Trustee's Obligations with Respect to the
Covenants..........................................20
SECTION 4.08 Compliance Certificate................................21
ii
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders....................................21
SECTION 5.02 Preservation of Information; Communications with
Securityholders....................................21
SECTION 5.03 Reports by the Company................................21
SECTION 5.04 Reports by the Trustee................................22
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.....................................23
SECTION 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee.............................25
SECTION 6.03 Application of Moneys Collected.......................26
SECTION 6.04 Limitation on Suits...................................26
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver.........................................27
SECTION 6.06 Control by Securityholders............................28
SECTION 6.07 Undertaking to Pay Costs..............................28
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee........29
SECTION 7.02 Certain Rights of Trustee.............................30
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities......................................31
SECTION 7.04 May Hold Securities...................................32
SECTION 7.05 Moneys Held in Trust..................................32
SECTION 7.06 Compensation and Reimbursement........................32
SECTION 7.07 Reliance on Officers' Certificate.....................33
SECTION 7.08 Disqualification; Conflicting Interests...............33
SECTION 7.09 Corporate Trustee Required; Eligibility...............33
SECTION 7.10 Resignation and Removal; Appointment of Successor ....33
SECTION 7.11 Acceptance of Appointment By Successor................35
SECTION 7.12 Merger, Conversion, Consolidation or Succession
to Business .......................................36
iii
SECTION 7.13 Preferential Collection of Claims Against the
Company............................................36
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.................37
SECTION 8.02 Proof of Execution by Securityholders.................37
SECTION 8.03 Who May be Deemed Owners..............................38
SECTION 8.04 Certain Securities Owned by Company Disregarded.......38
SECTION 8.05 Actions Binding on Future Securityholders.............38
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders....................................39
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders....................................40
SECTION 9.03 Effect of Supplemental Indentures.....................40
SECTION 9.04 Securities Affected by Supplemental Indentures........40
SECTION 9.05 Execution of Supplemental Indentures .................41
SECTION 9.06 Conformity with Trust Indenture Act...................41
ARTICLE X.
SUCCESSOR CORPORATION
SECTION 10.01 Company May Consolidate, Etc., Only on Certain
Terms..............................................41
SECTION 10.02 Successor Substitute..................................42
ARTICLE XI.
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture...............42
SECTION 11.02 Discharge of Obligations..............................43
SECTION 11.03 Deposited Moneys to be Held in Trust..................43
SECTION 11.04 Payment of Moneys Held by Paying Agents...............43
SECTION 11.05 Repayment to Company..................................44
iv
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse...........................................44
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns......................45
SECTION 13.02 Actions by Successor..................................45
SECTION 13.03 Surrender of Company Powers...........................45
SECTION 13.04 Notices...............................................45
SECTION 13.05 Governing Law.........................................45
SECTION 13.06 Treatment of Securities as Debt.......................45
SECTION 13 07 Compliance Certificates and Opinions..................46
SECTION 13.08 Payments on Business Days.............................46
SECTION 13 09 Conflict with Trust Indenture Act.....................46
SECTION 13.10 Counterparts..........................................46
SECTION 13.11 Separability..........................................47
SECTION 13.12 Assignment............................................47
v
INDENTURE, dated as of July 14, 2004, between Xxxxx & XxXxxxxx
Companies, Inc., a Delaware corporation (the "Company"), and The Bank of New
York, a New York banking corporation, as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured debt securities (hereinafter referred to as the
"Securities"), in an unlimited aggregate principal amount to be issued from
time to time in one or more series as in this Indenture provided, as
registered Securities without coupons, to be authenticated by the certificate
of the Trustee;
WHEREAS, to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of
the Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions of Terms.
--------------------
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the plural
as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that are by
reference in such Act defined in the Securities Act of 1933, as amended
(except as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10%
or more of the outstanding voting securities or other ownership interests of
the specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control
with the specified Person, (d) a partnership in which the specified Person is
a general partner, (e) any officer or director of the specified
Person, and (f) if the specified Person is an individual, any entity of which
the specified Person is an officer, director or general partner.
"Authenticating Agent" means an authenticating agent with respect to
all or any of the series of Securities appointed with respect to all or any
series of the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal or
State law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee of such Board.
"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.
"Business Day" means, with respect to any series of Securities, any day
other than a day on which Federal or State banking institutions in the Borough
of Manhattan, The City of New York, are authorized or obligated by law,
executive order or regulation to close.
"Company" means Xxxxx & McLennan Companies, Inc., a corporation duly
organized and existing under the laws of the State of Delaware, and, subject
to the provisions of Article X, shall also include its successors and assigns.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"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 is located at 000 Xxxxxxx Xxxxxx, Xxxxx 8 West, New
York, New York 10286, Attention: Corporate Trust Administration, or such other
address as the Trustee may designate from time to time by notice to the
holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the holders and the Company).
"Depositary" means, with respect to Securities of any series, for which
the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a particular
series any event specified in Section 6.01, continued for the period of time,
if any, therein designated.
2
"Global Security" means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
the Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary 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 Governmental Obligation or a specific payment of principal of or
interest on any such Governmental Obligation held by such custodian for the
account of the holder of such depositary 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 depositary receipt
from any amount received by the custodian in respect of the Governmental
Obligation or the specific payment of principal of or interest on the
Governmental Obligation evidenced by such depositary receipt.
"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.
"Indebtedness" of any person means the principal of and premium, if
any, and interest due on indebtedness of such Person, whether outstanding on
the date of this Indenture or thereafter created, incurred or assumed, which
is (a) indebtedness for money borrowed, and (b) any amendments, renewals,
extensions, modifications and refundings of any such indebtedness. For the
purposes of this definition, "indebtedness for money borrowed" means (i) any
obligation of, or any obligation guaranteed by, such Person for the repayment
of borrowed money, whether or not evidenced by bonds, debentures, notes or
other written instruments, (ii) any obligation of, or any such obligation
guaranteed by, such Person evidenced by bonds, debentures, notes or similar
written instruments, including obligations assumed or incurred in connection
with the acquisition of properly, assets or businesses (provided, however,
that the deferred purchase price of any business or property or assets shall
not be considered Indebtedness if the purchase price thereof is payable in
full within 90 days from the date on which such indebtedness was created), and
(iii) any obligations of such Person as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles and leases of property or assets made as part of any
sale and lease-back transaction to which such Person is a party. For purposes
of this covenant only, Indebtedness also includes any obligation of, or any
obligation guaranteed by, any Person for the payment of amounts due under a
swap agreement or similar instrument or agreement, or under a foreign currency
hedge or similar instrument or agreement.
3
"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 entered into in accordance with the terms hereof.
"Interest Payment Date", when used with respect to any installment of
interest on a Security of a particular series, means the date specified in
such Security or in a Board Resolution or in an indenture supplemental hereto
with respect to such series as the fixed date on which an installment of
interest with respect to Securities of that series is due and payable.
"Officers' Certificate" means a certificate signed by the Chairman or a
Vice President and by the Treasurer or an Assistant Treasurer or the
Controller or an Assistant Controller or the Secretary or an Assistant
Secretary of the Company that is delivered to the Trustee in accordance with
the terms hereof. Each such certificate shall include the statements provided
for in Section 13.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 13.07, if and to the extent required by
the provisions thereof.
"Outstanding", when used with reference to Securities of any series,
means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the
Trustee under this Indenture, except (a) Securities theretofore canceled by
the Trustee or any paying agent, or delivered to the Trustee or any paying
agent for cancellation or that have previously been canceled; (b) Securities
or portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the
Company shall act as its own paying agent); provided, however, that if such
Securities or portions of such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in
Article III provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and (c) Securities in lieu of or in substitution
for which other Securities shall have been authenticated and delivered, or
securities which shall have been paid, pursuant to the terms of Section 2.07.
"Person" means any individual, corporation, partnership, joint-venture,
joint-stock company, 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 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
4
"Responsible Officer" when used with respect to the Trustee means any
officer in its corporate trust department or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Securities" means the debt Securities authenticated and delivered
under this Indenture.
"Securityholder", "holder of Securities", "registered holder", or other
similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose
in accordance with the terms of this Indenture.
"Significant Subsidiary" means Xxxxx Inc., Xxxxxx, LLC or Xxxxxx Inc.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries
or by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by
such Person, or by one or more of its Subsidiaries, or by such Person and one
or more of its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner.
"Trustee" means The Bank of New York, and, subject to the provisions of
Article VII, shall also include its successors and assigns, and, if at any
time there is more than one Person acting in such capacity hereunder,
"Trustee" shall mean each such Person. The term "Trustee" as used with respect
to a particular series of the Securities shall mean the trustee with respect
to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 9.01 and 9.02, as in effect at
the date of execution of this instrument.
"Voting Stock", as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
5
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
-----------------------------------
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of
Securities of that series from time to time authorized by or pursuant to a
Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Securities of any
series, there shall be established in or pursuant to a Board Resolution of the
Company, and set forth in an Officers' Certificate of the Company, or
established in one or more indentures supplemental hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of that series that 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 that
series);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment periods and
the duration of such extension;
(7) 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
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions
(including payments made in cash in participation of future sinking fund
obligations) or at the option of a holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions upon
which, Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
6
(9) the form of the Securities of the series including the form of
the Certificate of Authentication for such series;
(10) if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, the denominations in which the
Securities of the series shall be issuable;
(11) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture) including
any terms which may be required by or advisable under United States laws or
regulations or advisable in connection with the marketing of Securities of
that series;
(12) whether the Securities are issuable as a Global Security and,
in such case, the identity for the Depositary for such series;
(13) whether the Securities will be convertible into shares of
common stock or other securities of the Company and, if so, the terms and
conditions upon which such Securities will be so convertible, including the
conversion price and the conversion period;
(14) 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 6.01;
(15) any additional or different Events of Default or restrictive
covenants provided for with respect to the Securities of the series;
(16) any provisions granting special rights to holders when a
specified event occurs; and
(17) any special tax implications of the notes, including provisions
for original issue discount securities, if offered.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action 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
Officers' Certificate of the Company setting forth the terms of the series.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by
which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
7
SECTION 2.02 Form of Securities and Trustee's Certificate.
--------------------------------------------
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto
or as provided in a Board Resolution of the Company and as set forth in an
Officers' Certificate of the Company and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may
be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
Securities of that series may be listed, or to conform to usage.
SECTION 2.03 Denominations: Provisions for Payment.
--------------------------------------
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(11). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified with
respect to that series. The principal of and the interest on the Securities of
any series, as well as any premium thereon in case of redemption thereof prior
to maturity, shall be payable in the coin or currency of the United States of
America that at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Security shall be dated the
date of its authentication. Interest on the Securities shall be computed on
the basis of a 360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment. In the
event that any Security of a particular series or portion thereof is called
for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Security will be paid upon presentation and surrender
of such Security as provided in Section 3.03.
Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the
same series (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed
in the following manner: the Company shall notify the Trustee in writing of
the amount of Defaulted
8
Interest proposed to be paid on each such Security 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 not be more than 15 nor 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 Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), 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 mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date
and shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such 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.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Securities with respect to
any Interest Payment Date for such series shall mean either the fifteenth day
of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the first day of a month, or the first day of
the month in which an Interest Payment Date established for such series
pursuant to Section 2.01 hereof shall occur, if such Interest Payment Date is
the fifteenth day of such month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.
SECTION 2.04 Execution and Authentications.
-----------------------------
The Securities shall be signed on behalf of the Company by its
Chairman, or one of its Vice Presidents together with its Treasurer, or one of
its Assistant Treasurers, or its Secretary, or one of its Assistant
Secretaries, under its corporate seal
9
attested by its Secretary or one of its Assistant Secretaries. Signatures may
be in the form of a manual or facsimile signature. The Company may use the
facsimile signature of any Person who shall have been a Chairman or Vice
President thereof, or of any Person who shall have been a Secretary or
Assistant Secretary thereof, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered or disposed of such Person
shall have ceased to be the Chairman or a Vice President, or the Secretary or
an Assistant Secretary, of the Company. The seal of the Company may be in the
form of a facsimile of such seal and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. The Securities may contain such
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the
Trustee.
A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature 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.
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 written order
of the Company for the authentication and delivery of such Securities, signed
by its Chairman or any Vice President and its Secretary or any Assistant
Secretary, and the Trustee in accordance with such written order shall
authenticate and deliver such Securities.
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 Section 7.01) shall be
fully protected in relying upon (i) an Officer's Certificate or executed
supplemental indenture setting forth the form and terms of the Securities as
required pursuant to Section 2.1 and (ii) an Opinion of Counsel stating that
the form and terms thereof have been established in conformity with the
provisions of this Indenture and that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will be valid and
binding obligations of the Company entitled to the benefits of this Indenture,
and enforceable against the Company in accordance with their terms, except to
the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar laws
now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
10
SECTION 2.05 Registration of Transfer and Exchange.
-------------------------------------
(a) Securities of any series may be exchanged upon presentation
thereof at the office or agency of the Company designated for such purpose in
the Borough of Manhattan, the City and State of New York, for other Securities
of such series of authorized denominations, and for a like aggregate principal
amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In
respect of any Securities so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall
deliver in exchange therefor the Security or Securities of the same series
that the Securityholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall register
the Securities and the transfers of Securities as in this Article provided and
which at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Securities and transfer of Securities
as herein provided shall be appointed as authorized by Board Resolution (the
"Security Registrar").
Upon surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute, the
Trustee shall authenticate and such office or agency shall deliver in the name
of the transferee or transferees a new Security or Securities of the same
series as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments
of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder's duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities in case of
partial redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, the second paragraph of Section
3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series and
ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or portions
thereof called for redemption. The provisions of this Section 2.05 are, with
respect to any Global Security, subject to Section 2.11 hereof.
11
SECTION 2.06 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities 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. Every temporary Security
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish definitive
Securities of such series and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for the purpose in
the Borough of Manhattan, the City and State of New York, and the Trustee
shall authenticate and such office or agency shall deliver in exchange for
such temporary Securities an equal aggregate principal amount of definitive
Securities of such series, unless the Company advises the Trustee in writing
to the effect that definitive Securities need not be executed and furnished
until further notice from the Company. Until so exchanged, the temporary
Securities of such series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and delivered
hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
-----------------------------------------------
In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company's request the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's Security and
of the ownership thereof. The Trustee may authenticate any such substituted
Security and deliver the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted 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 shall become
mutilated or be destroyed, lost or stolen, the Company 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 Security) if the applicant
for such payment shall furnish to the Company and the Trustee such security or
indemnity as they may require to save them harmless, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and
the Trustee of the destruction, loss or theft of such Security and of the
ownership thereof.
12
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be
found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder. All Securities
shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen 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.
SECTION 2.08 Cancellation.
------------
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or
any paying agent, be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be cancelled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On written request of the Company at the
time of such surrender, the Trustee shall deliver to the Company canceled
Securities held by the Trustee. In the absence of such request the Trustee may
dispose of canceled Securities in accordance with its standard procedures. If
the Company shall otherwise acquire any of the Securities, however, 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 2.09 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties
hereto and the holders of the Securities any legal or equitable right, remedy
or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and
provisions being for the sole benefit of the parties hereto and of the holders
of the Securities.
SECTION 2.10 Authenticating Agent.
--------------------
So long as any of the Securities of any series remain Outstanding there
may be an Authenticating Agent for any or all such series of Securities which
the Trustee shall have the right to appoint. Said Authenticating Agent shall
be authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon exchange, transfer or partial redemption thereof, 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. All references in this Indenture to
the authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series. Each Authenticating
Agent shall be acceptable to the Company and shall be a corporation that has a
combined capital and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is organized or
in which it is doing business to
13
conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by Federal
or State authorities. If at any time any Authenticating Agent shall cease to
be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon written request by the Company shall) terminate the agency
of any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
-----------------
(a) If the Company shall establish pursuant to Section 2.01 that
the Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with
Section 2.04, authenticate and deliver, a Global Security that (i) shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series, (ii)
shall be registered in the name of the Depositary or its nominee, (iii) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following
effect: "Except as otherwise provided in Section 2.11 of the Indenture, this
Security may be transferred, in whole but not in part, only to another nominee
of the Depositary or to a successor Depositary or to a nominee of such
successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section
2.11 shall no longer be applicable to the Securities of such series and the
Company will execute, and subject to Section 2.05, the Trustee will
authenticate and deliver the Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the
14
Securities of any series shall no longer be represented by a Global Security
and that the provisions of this Section 2.11 shall no longer apply to the
Securities of such series. In such event the Company will execute and subject
to Section 2.05, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
the Securities of such series in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. Upon the exchange of the Global Security for such Securities
in definitive registered form without coupons, in authorized denominations, the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 2.11(c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
SECTION 2.12 CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the "CUSIP" numbers.
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
----------
The Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established for such
series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
--------------------
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Securities of any series
in accordance with the right reserved so to do, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than
90 days before the date fixed for redemption of that series to such holders at
their last addresses as they shall appear upon the Security Register unless a
shorter period is specified in the Securities to be redeemed. Any notice that
is mailed
15
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the registered holder receives the notice. In any case,
failure duly to give such notice to the holder of any Security of any series
designated for redemption in whole or in part, or any defect in the notice,
shall not affect the validity of the proceedings for the redemption of any
other Securities of such series or any other series. 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 any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are to
be redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon presentation
and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Securities of a series are to
be redeemed, the notice to the holders of Securities of that series to be
redeemed in whole or in part shall specify the particular Securities to be so
redeemed. In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after the redemption date,
upon surrender of such Security, a new Security or Securities of such series
in principal amount equal to the unredeemed portion thereof will be issued.
(b) If the Trustee is to provide notice to the holders of
Securities in accordance with section 3.02 (a) above, for a partial or full
redemption, the Company shall give the Trustee at least 45 days notice in
advance of the date fixed for redemption as to the aggregate principal amount
of Securities of the series to be redeemed, and thereupon, in the case of a
partial redemption, the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that may provide
for the selection of a portion or portions (equal to one thousand U.S. dollars
($1,000) or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be redeemed
and shall thereafter promptly notify the Company in writing of the numbers of
the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chairman or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given by
the Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or
such paying agent to give any notice by mail that may be required under the
provisions of this Section.
16
SECTION 3.03 Payment Upon Redemption.
-----------------------
(a) If the giving of notice of redemption shall have been completed
as above provided, the Securities or portions of Securities of the series to
be redeemed specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption and interest
on such Securities or portions of Securities shall cease to accrue on and
after the date fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect to any such
Security or portion thereof. On presentation and surrender of such Securities
on or after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such date shall be
payable to the registered holder at the close of business on the applicable
record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Security
of the same series of authorized denominations in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 3.04 Sinking Fund.
------------
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.
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 3.05. 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 3.05 Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (i) may deliver Outstanding Securities of a series (other
than any Securities previously called for redemption) and (ii) may apply as a
credit Securities of a series that 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 each case 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 that such Securities have not
17
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 3.06 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 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 the series, the portion thereof, if any,
that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will, together with
such Officers' Certificate, 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 3.02 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 3.02. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Section 3.03.
ARTICLE IV.
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established
with respect to such Securities.
SECTION 4.02 Maintenance of Office or Agency.
-------------------------------
So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City
and State of New York, with respect to each such series and at such other
location or locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented for payment, (ii)
Securities of that series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and demands to or
upon the Company in respect of the Securities of that series and this
Indenture may be given or served, such designation to continue with respect to
such office or agency until the Company shall, by written notice signed by its
Chairman or a Vice President and delivered to the trustee, designate some
other office or agency for such purposes or any of them. 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,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee and the Company hereby appoints the Trustee as its agent to receive
all such presentations, notices and demands.
18
SECTION 4.03 Paying Agents.
-------------
(a) If the Company shall appoint one or more paying agents for all
or any series of the Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of (and premium, if any) or interest on
the Securities of that series (whether such sums have been paid to it
by the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor of such Securities) to make any
payment of the principal of (and premium, if any) or interest on the
Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as
set forth in this Indenture.
(b) If the Company shall act as its own paying agent with respect
to any series of the Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Securities of that series,
set aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Securities of that series until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it or any other
obligor on such Securities) to take such action. 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 premium, if any) or interest on any
Securities of that series, deposit with the paying agent a sum sufficient to
pay the principal (and premium, if any) 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 this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i)
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.05, and (ii) 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 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 terms and conditions as those upon which such
sums were held by the Company or such paying
19
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.
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.
------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.05 Compliance with Consolidation Provisions.
----------------------------------------
The Company will not, while any of the Securities remain Outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all
or substantially all of its property to any other company unless the
provisions of Article X hereof are complied with.
SECTION 4.06. Limitation on Liens on Stock of Significant Subsidiaries.
--------------------------------------------------------
The Company will not, and it will not permit any Subsidiary of the
Company to, at any time directly or indirectly create, assume, incur or permit
to exist any Indebtedness secured by a pledge, lien or other encumbrance (any
pledge, lien or other encumbrance being hereinafter in this Section referred
to as a "lien") on the voting stock or voting equity interest of a
"Significant Subsidiary" without making effective provision whereby the
Securities then Outstanding (and, if the Company so elects, any other
Indebtedness of the Company that is not subordinate to the Securities and with
respect to which the governing instruments require, or pursuant to which the
Company is otherwise obligated or required, to provide such security) shall be
equally and ratably secured with such secured Indebtedness so long as such
other Indebtedness shall be so secured.
If the Company shall hereafter be required to secure the Securities
equally and ratably with any other Indebtedness pursuant to this Section,
(i) the Company will promptly deliver to the Trustee an Officers' Certificate
stating that the foregoing covenant has been complied with, and an Opinion of
Counsel stating that in the opinion of such counsel the foregoing covenant has
been complied with and (ii) the Trustee is hereby authorized to enter into an
indenture or agreement supplemental hereto and to take such action, if any, as
it may deem advisable to enable it to enforce the rights of the holders of the
Securities so secured.
SECTION 4.07 Trustee's Obligations with Respect to the Covenants.
---------------------------------------------------
The Trustee shall not be obligated to monitor or confirm, on a
continuing basis or otherwise, the Issuer's compliance with the covenants
contained in this Article IV or with respect to reports or other documents
filed under the Indenture; provided, however, that nothing herein shall
relieve the Trustee of any obligations to monitor the Issuer's timely delivery
of all reports and certificates required under Sections 5.01 and 5.03 of the
Indenture and to fulfill its obligations under Article VII hereof.
20
SECTION 4.08 Compliance Certificate.
----------------------
The Company shall deliver to the Trustee within 120 days after the end
of each of the Company's fiscal years, a certificate executed by its principal
executive officer, principal financial officer or principal accounting
officer, stating as to his or her knowledge the Company's compliance (without
regard to periods of grace or notice requirements) with all conditions and
covenants under this Indenture, and if the Company shall not be in compliance,
specifying such non-compliance and the nature and status thereof of which such
officer may have knowledge.
ARTICLE V.
SECURITYHOLDERS LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Securityholders.
---------------
The Company will furnish or cause to be furnished to the Trustee (a) on
each regular record date (as defined in Section 2.03) a list, in such form as
the Trustee may reasonably require, of the names and addresses of the holders
of each series of Securities as of such regular record date, provided that the
Company shall not be obligated to furnish or cause to furnish such list at any
time that the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Company 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 list is furnished; provided, however,
that, in either case, no such list need be furnished for any series for which
the Trustee shall be the Security Registrar.
SECTION 5.02 Preservation of Information; Communications with
------------------------------------------------
Securityholders.
---------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Securities.
SECTION 5.03 Reports by the Company.
----------------------
(a) The Company covenants and agrees to file with the Trustee,
within 30 days after the Company is required to file the same with the
Commission, copies of
21
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) that 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 such sections, then to file with
the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports that may be required pursuant to
Section 13 of the Exchange Act, in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in
such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the 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 provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
(d) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service that provides
for evidence of receipt, to the Securityholders, as their names and addresses
appear upon the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of
this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
SECTION 5.04 Reports by the Trustee.
----------------------
(a) On or before June 15 in each year in which any of the
Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the preceding May 15,
if and to the extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so listed)
and also with the Commission. The
22
Company agrees to reasonably promptly notify the Trustee in writing when any
Securities become listed on any stock exchange, and of any delisting thereof.
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
-----------------
(a) Whenever used herein with respect to Securities of a particular
series, "Event of Default" means any one or more of the following events that
has occurred and is continuing:
(1) the Company defaults in the payment of any installment
of interest upon any of the Securities of that series, as and when the
same shall become due and payable, and continuance of such default for
a period of 90 days; provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of
any indenture supplemental hereto, shall not constitute a default in
the payment of interest for this purpose;
(2) the Company defaults in the payment of the principal of
(or premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or in any payment required by
any sinking or analogous fund established with respect to that series;
provided, however, that a valid extension of the maturity of such
Securities in accordance with the terms of any indenture supplemental
hereto shall not constitute a default in the payment of principal or
premium, if any;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely for
the benefit of one or more series of Securities other than such series)
for a period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice
is a "Notice of Default" hereunder, shall have been given to the
Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in principal
amount of the Securities of that series at the time Outstanding;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors; or
23
(5) a court of competent jurisdiction enters an order under
any Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of their respective property, or (iii) orders the
liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days.
(b) In each and every such case, unless the principal of all the
Securities of that series shall have already become due and payable, either
the Trustee or the holders of not less than 25% in aggregate principal amount
of the Securities of that series then Outstanding hereunder, by notice in
writing to the Company (and to the Trustee if given by such Securityholders),
may declare the principal of all the Securities of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, notwithstanding anything contained in
this Indenture or in the Securities of that series or established with respect
to that series pursuant to Section 2.01 to the contrary.
(c) At any time after the principal of the Securities of that
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered
as hereinafter provided, the holders of a majority in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if: (i) the Company has paid or deposited with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of that series and the principal of (and premium, if any, on)
any and all Securities of that series that shall have become due otherwise
than by acceleration (with interest upon such principal and premium, if any,
and, to the extent that such payment is enforceable under applicable law, upon
overdue installments of interest, at the rate per annum expressed in the
Securities of that series to the date of such payment or deposit) and the
amount payable to the Trustee under Section 7.06, and (ii) any and all Events
of Default under the Indenture with respect to such series, other than the
nonpayment of principal on Securities of that series that shall not have
become due by their terms, shall have been remedied or waived as provided in
Section 6.06.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Securities of that series 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 positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
24
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Securities of a series,
or any payment required by any sinking or analogous fund established with
respect to that series as and when the same shall have become due and payable,
and such default shall have continued for a period of 90 Business Days, or (2)
in case it shall default in the payment of the principal of (or premium, if
any, on) any of the Securities of a series when the same shall have become due
and payable, whether upon maturity of the Securities of a series or upon
redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the
Securities of that series, the whole amount that then shall have been become
due and payable on all such Securities for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the overdue
principal (and premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue installments of
interest at the rate per annum expressed in the Securities of that series;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, and the amount payable to the Trustee
under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith 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 proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon the Securities of that series and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the Company
or other obligor upon the Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or judicial
proceedings affected the Company, or its creditors or property, the Trustee
shall have power to intervene in such proceedings and take any action therein
that may be permitted by the court and shall (except as may be otherwise
provided by law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the holders of Securities of such series allowed for the entire
amount due and payable by the Company under the Indenture at the date of
institution of such proceedings and for any additional amount that may become
due and payable by the Company after such date, and to collect and receive any
moneys or other property payable or deliverable on any such claim, and to
distribute the same after the deduction of the amount payable to the Trustee
under Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of
such series to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to such
Securityholders, to pay to the Trustee any amount due it under Section 7.06.
25
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities of
that series, may be enforced by the Trustee without the possession of any of
such Securities, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for payment to the Trustee of any
amounts due under Section 7.06, be for the ratable benefit of the holders of
the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 6.03 Application of Moneys Collected.
-------------------------------
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Securities of that series, and notation
thereon the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST: To the payment of costs and expenses of collection and
of all amounts payable to the Trustee under Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 6.04 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 suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i)
26
such holder previously shall have given to the Trustee written notice of an
Event of Default and of the continuance thereof with respect to the Securities
of such series specifying such Event of Default, as hereinbefore provided; (ii)
the holders of not less than 25% in aggregate principal amount of the Securities
of such series then Outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as trustee
hereunder; (iii) such holder or holders shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby; and (iv) the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
failed to institute any such action, suit or proceeding and (v) during such
60 day period, the holders of a majority in principal amount of the Securities
of that series do not give the Trustee a direction inconsistent with the
request.
Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and interest on such
Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without
the consent of such holder and by accepting a Security hereunder it is
expressly understood, intended and covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the
Trustee, that no one or more holders of Securities of such series shall have
any right in any manner whatsoever by virtue or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of the holders of
any other of such Securities, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities of such series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not
-----------------------------------------------------
Waiver.
------
(a) Except as otherwise provided in Section 2.07, all powers and
remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance
or observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of
the Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to
27
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 6.06 Control by Securityholders.
--------------------------
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture or be unduly prejudicial to the rights
of holders of Securities of any other series at the time Outstanding
determined in accordance with Section 8.04. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding affected thereby, determined in accordance with Section 8.04, may
on behalf of the holders of all of the Securities of such series waive any
past default in the performance of any of the covenants contained herein or
established pursuant to Section 2.01 with respect to such series and its
consequences, except a default in the payment of the principal of, or premium,
if any, or interest on, any of the Securities of that series as and when the
same shall become due by the terms of such Securities otherwise than by
acceleration (unless such default has been cured and a sum sufficient to pay
all matured installments of interest and principal and any premium has been
deposited with the Trustee (in accordance with Section 6.01(c)). Upon any
such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.07 Undertaking to Pay Costs.
------------------------
All parties to this Indenture agree, and each holder of any Securities
by such holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to
this Indenture.
28
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
----------------------------------------------
(a) The Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing of all Events
of Default with respect to the Securities of that series that may have
occurred, shall undertake to perform with respect to the Securities of such
series such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to the Securities of a
series has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that 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.
(b) 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) prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing or waiving
of all such Events of Default with respect to that series that may have
occurred:
(i) the duties and obligations of the Trustee shall
with respect to the Securities of such series be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable with respect to the Securities of
such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Securities of such
series conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions that 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;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
29
(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 not less than a majority in
principal amount of the Securities of any series at the time
Outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture with
respect to the Securities of that series; and
(4) none of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if there is reasonable
ground for believing that the repayment of such funds or liability is
not reasonably assured to it under the terms of this Indenture or
adequate indemnity against such risk is not reasonably assured to it.
(5) whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct of or affecting the
liability of or affording protection to the Trustee shall be subject to
the requirements of the Trust Indenture Act.
SECTION 7.02 Certain Rights of Trustee
-------------------------
Except as otherwise provided in Section 7.01
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security 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 Board Resolution or an
instrument signed in the name of the Company, by the Chairman or any Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer thereof (unless other evidence in respect thereof is
specifically prescribed herein);
(c) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) Subject to Section 7.01, 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 Securityholders,
pursuant to the provisions of this Indenture, unless such Securityholders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
30
(e) The Trustee shall not be liable for any action taken or omitted
to be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
security, or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the
Outstanding Securities of the particular series affected thereby (determined
as provided in Section 8.04); provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such costs, expenses or liabilities as a condition to so
proceeding. The reasonable expense of every such examination shall be paid by
the Company or, if paid by the Trustee, shall be repaid by the Company upon
demand; and
(g) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(h) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such
a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified in connection with the performance of its duties under this
Indenture shall extend to the Trustee's officers, directors, agents and
employees. Such immunities and protections and right to indemnification,
together with the Trustee's right to compensation, shall survive the Trustee's
resignation or removal and final payment of the Securities.
(j) The Trustee may request that the Company deliver a certificate
setting forth the names of individuals and/or titles of officers authorized at
such time to take specified actions pursuant to this Indenture.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
------------------------------------------------
or Securities.
-------------
(a) The recitals contained herein and in the Securities shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
31
(c) The Trustee shall not be accountable for the use or application
by the Company of any of the Securities or of the proceeds of such Securities,
or for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any
paying agent other than the Trustee.
SECTION 7.04 May Hold Securities.
-------------------
The Trustee or any paying agent or Security Registrar, 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 Trustee, paying
agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
--------------------
Subject to the provisions of Section 11.05, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any moneys received by it hereunder except such
as it may agree with the Company in writing to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
------------------------------
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such compensation (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), as the Company, and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all Persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of
the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
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.
32
SECTION 7.07 Reliance on Officers' Certificate.
---------------------------------
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee and such certificate, in the absence of negligence or
bad faith on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted to be taken by it under the provisions
of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation or national
association organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia,
or a corporation or other Person permitted to act as trustee by the
Commission, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation or
national association 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 corporation or national association shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Company may not, nor may any Person
directly or indirectly controlling, controlled by, or under common control
with the Company, serve as Trustee. 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 Section 7.10.
SECTION 7.10 Resignation and Removal, Appointment of Successor.
-------------------------------------------------
(a) The Trustee or any successor hereafter appointed, may at any
time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Securities of such series by written
instrument, in duplicate, executed by order of the Board of
33
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 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 with
respect to Securities of such series, or any Securityholder of that series who
has been a bona fide holder of a Security or Securities for at least six months
may on behalf of himself and all others similarly situated, petition any such
court for the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or
Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance
with the provisions of Section 7.09 and shall fail to resign after
written request therefor by the Company or by any such Securityholder;
or
(3) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
the Company may remove the Trustee with respect to all Securities and
appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee, or, unless the Trustee's duty to resign is
stayed as provided herein, any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months may, on
behalf of that holder and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the consent
of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any
of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
34
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor trustee
with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor trustee relates, (2) shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate 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, that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee and that no Trustee shall be responsible for any act or failure to act
on the part of any other Trustee hereunder; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein, such
retiring Trustee shall with respect to the Securities of that or those series
to which the appointment of such successor trustee relates have no further
responsibility for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture, and
each such successor trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent
35
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any corporation or national association into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
or national association resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation or national
association succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the Company.
-----------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
36
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
-------------------------------------
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Securities of that
series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that
series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Securities of that series shall be computed as of
the record date; provided, however, that no such authorization, agreement or
consent by such Securityholders 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.
SECTION 8.02 Proof of Execution by Securityholders.
-------------------------------------
Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization)
or his agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
37
SECTION 8.03 Who May be Deemed Owners.
------------------------
Prior to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the Person in whose name such Security shall be
registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of
the principal of, premium, if any, and (subject to Section 2.03) interest on
such Security and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be affected by
any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
-----------------------------------------------
In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent of waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that series or
by any Person directly or indirectly controlling or controlled by or under
common control with the Company or any other obligor on the Securities of that
series shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver, only Securities of such series that a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded. The Securities so
owned that have been pledged in good faith may be regarded as Outstanding for
the purposes of this Section, if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company or any such other obligor. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
-----------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the holders of the majority or percentage in aggregate principal
amount of the Securities of a particular series specified in this Indenture in
connection with such action shall
38
be conclusively binding upon the Company, the Trustee and the holders of all
the Securities of that series.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
----------------------------------------------
Securityholders.
---------------
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect, or inconsistency herein, in the
Securities of any series;
(b) to comply with Article X;
(c) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(d) 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 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;
(e) to add to, delete from, or revise the conditions, limitations,
and restrictions on the authorized amount, terms, or purposes of issue,
authentication, and delivery of Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of
any Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms
and conditions of the Securities of any series as provided in Section 2.01, to
establish the form of any certifications required to be furnished pursuant to
the terms of this Indenture or any series of Securities, or to add to the
rights of the holders of any series of Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
39
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the
holders of any of the Securities at the time Outstanding, notwithstanding any
of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of Securityholders.
-------------------------------------------------------
With the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the Securities of
each series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by Board Resolutions, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as then in effect) 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 not covered by Section 9.01 the rights of the holders of the Securities
of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the holders of each
Security then Outstanding and affected thereby, (i) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof or (ii) reduce the aforesaid
percentage of Securities, the holders of which are required to consent to any
such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, this Indenture shall, with
respect to such series, 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 the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.04 Securities Affected by Supplemental Indentures.
----------------------------------------------
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so
40
modified as to conform, in the opinion of the Board of Directors of the Company,
to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the Trustee and
delivered in exchange for the Securities of that series then Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
------------------------------------
Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion but
shall not be obligated to enter into such supplemental indenture. The Trustee,
subject to the provisions of Section 7.01, shall be entitled to receive an
Officers' Certificate and Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is proper
for the Trustee under the provisions of this Article to join in the execution
thereof; provided, however, that such Officers' Certificate and Opinion of
Counsel need not be provided in connection with the execution of a
supplemental indenture that establishes the terms of a series of Securities
pursuant to Section 2.01 hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth
in general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.06 Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE X.
SUCCESSOR CORPORATION
SECTION 10.01 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
(a) The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease all or substantially all of its properties
and assets to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease all or substantially all of its
properties and assets
41
to any Person, the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, all or substantially all of the properties and assets of the Company
shall be a corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, the due and punctual
payment of the principal of and any premium and interest on all the Securities
and the performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 10.02 Successor Substitute.
--------------------
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 of the properties and assets of the Company in accordance
with Section 10.01 above, 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 the 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 predecessor Person shall be relieved of all
obligations and covenants under the Indenture and the Notes.
ARTICLE XI.
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
---------------------------------------
If at any time: (a) the Company shall have delivered to the Trustee
for cancellation all Securities of a series theretofore authenticated (other
than any Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07) and Securities
for whose payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company (and
thereupon repaid to the Company or discharged from such trust, as provided in
Section 11.05); or (b) all such Securities of a particular series not
theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under
42
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit or cause to be deposited with the Trustee as
trust funds the entire amount in moneys or Governmental Obligations sufficient
or a combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all
Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or to
become due to such date of maturity or date fixed for redemption, as the case
may be, and if the Company shall also pay or cause to be paid all other sums
payable hereunder with respect to such series by the Company then this Indenture
shall thereupon cease to be of further effect with respect to such series
except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and
7.10, that shall survive until the date of maturity or redemption date, as the
case may be, and Sections 7.06 and 11.05, that shall survive to such date and
thereafter, and the Trustee, on demand of the Company and at the cost and
expense of the Company shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
SECTION 11.02 Discharge of Obligations.
------------------------
If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient to pay at maturity or upon
redemption all such Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company
under this Indenture with respect to such series shall cease to be of further
effect except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities
shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
------------------------------------
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
---------------------------------------
In connection with the satisfaction and discharge of this Indenture all
moneys or Governmental Obligations then held by any paying agent under the
provisions of
43
this Indenture shall, upon demand of the Company, be paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such moneys or Governmental Obligations.
SECTION 11.05 Repayment to Company.
--------------------
Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal
of or premium or interest on the Securities of a particular series that are
not applied but remain unclaimed by the holders of such Securities for at
least two years after the date upon which the principal of (and premium, if
any) or interest on such Securities shall have respectively become due and
payable, shall upon request of the Company, be repaid to the Company or (if
then held by the Company) shall be discharged from such trust; and thereupon
the paying agent and the Trustee shall be released from all further liability
with respect to such moneys or Governmental Obligations, and the holder of any
of the Securities entitled to receive such payment shall thereafter, as an
unsecured general creditor, look only to the Company for the payment thereof.
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No Recourse.
-----------
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer
or director, past, present or future as such, of the Company or of any
predecessor or successor corporation, either directly or through the Company
or any such predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and
the obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be incurred
by, the incorporators, stockholders, officers or directors as such, of the
Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Securities.
44
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
--------------------------------
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 13.02 Actions by Successor.
--------------------
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.
SECTION 13.03 Surrender of Company Powers.
---------------------------
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION 13.04 Notices.
-------
Except as otherwise expressly provided herein any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Securities to or on the Company may
be given or served by being deposited first class postage prepaid in a
post-office letterbox addressed (until another address is filed in writing by
the Company with the Trustee), as follows: Xxxxx & XxXxxxxx Companies, Inc.,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000. Any notice,
election, request or demand by the Company or any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 13.05 Governing Law.
-------------
This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall
be construed in accordance with the laws of said State.
SECTION 13.06 Treatment of Securities as Debt.
-------------------------------
It is intended that the Securities will be treated as indebtedness and
not as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this intention.
45
SECTION 13.07 Compliance Certificates and Opinions.
------------------------------------
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company,
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
SECTION 13.08 Payments on Business Days.
-------------------------
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers Certificate, or established in one
or more indentures supplemental to this Indenture, in any case where the date
of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of interest or
principal (and premium, if any) may be made on the next succeeding Business
Day with the same force and effect as if made on the nominal date of maturity
or redemption, and no interest shall accrue for the period after such nominal
date.
SECTION 13.09 Conflict with Trust Indenture Act.
---------------------------------
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 13.10 Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute
but one and the same instrument.
46
SECTION 13.11 Separability.
------------
In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as
if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
SECTION 13.12 Assignment.
----------
The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect
wholly-owned Subsidiary of the Company, provided that, in the event of any
such assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
47
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
XXXXX & McLENNAN COMPANIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President & Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
