1
EXHIBIT 4b
================================================================================
FERRO CORPORATION
and
--------------------------
Trustee
-------------------
INDENTURE
Dated as of , 199
----------- --
-------------------
================================================================================
2
FERRO CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . . . . 610
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . . 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
. . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . 1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a) . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 502
. . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
. . . . . . . . . . . . . . . . . . . . . . . . 513
3
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . 107
--------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
4
TABLE OF CONTENTS
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Domestic Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
pari passu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Principal Domestic Manufacturing Property . . . . . . . . . . . . . . . . 5
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- i -
5
Page
----
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . 7
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . 7
Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . . . . 8
Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . 9
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 9
Section 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . 9
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE TWO
Security Forms
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . 13
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- ii -
6
Page
----
Section 204. Additional Provisions Required in Book-Entry Security . . . . . . . . . . 16
Section 205. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . 16
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . 16
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . 18
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . 20
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . 21
Section 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . 22
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . 24
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE FIVE
Remedies
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . 27
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 28
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- iii -
7
Page
----
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . 29
Section 505. Trustee May Enforce Claims without Possession
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . 29
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . 30
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . 31
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . 31
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . 32
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . 33
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . 35
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . 35
Section 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . 36
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- iv -
8
Page
----
Section 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . 36
Section 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . 36
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . 37
Section 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 613. Preferential Collection of Claim Against Company . . . . . . . . . . . . 38
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . 38
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses
Of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 702. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . 43
Section 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . 44
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . 45
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 45
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- v -
9
Page
----
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . 45
Section 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . 45
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . 46
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . 46
Section 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . 46
Section 1004. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . 47
Section 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . 48
Section 1008. Restrictions on Secured Debt . . . . . . . . . . . . . . . . . . . . . . 49
Section 1009. Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . . 50
Section 1010. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . 50
Section 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . 51
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . 52
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . 52
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . 52
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- vi -
10
Page
----
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . 53
Section 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . 53
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . 53
Section 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . 54
Section 1305. Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions . . . . . . . . . . . 56
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 1402. No Payments on Securities if Senior Indebtedness in
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 1403. Priority of Senior Indebtedness Upon Distribution of
Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 1404. Trustee and Holders of Securities May Rely on Court
Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . . 59
Section 1405. Subrogation of Holders of the Securities . . . . . . . . . . . . . . . . 59
Section 1406. Obligation of Company to Pay Unconditional . . . . . . . . . . . . . . . 59
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- vii -
11
Page
----
Section 1407. Authorization of Holders of Securities to Trustee to Effect
Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 1408. Securities Otherwise Payable . . . . . . . . . . . . . . . . . . . . . . 60
Section 1409. Notice to Trustee of Facts Prohibiting Payments . . . . . . . . . . . . . 60
Section 1410. Rights of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 1411. Rights of Holders of Senior Indebtedness Not Impaired . . . . . . . . . . 60
Section 1412. No Fiduciary Duty to Holders of Senior Indebtedness . . . . . . . . . . . 61
Section 1413. Other Provisions Subject Hereto . . . . . . . . . . . . . . . . . . . . . 61
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
- viii -
12
INDENTURE, dated as of ________, 199_ between Ferro Corporation, a
corporation duly organized and existing under the laws of the State of Ohio
(herein called the "Company"), having its principal office at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000, and _________________________, a
_______________________ duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural
as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except
as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the
date of this instrument; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified
13
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Attributable Debt" means, as to any particular lease under which
any Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining term thereof (after giving effect
to any extensions at the option of the lessor), discounted from the respective
due dates thereof to such date at a rate of 1% per annum over the weighted
average Yield to Maturity of the Outstanding Securities compounded
semi-annually, such average being weighted by the principal amount of each
series Outstanding or in the case of any series of Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series that would be payable upon acceleration of the Maturity
thereof at the time of such determination. The net amount of rent required to
be paid under any such lease for any such period shall be the amount of rent
payable by the lessee with respect to such period, after excluding amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. In the case of any lease which
is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more Series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that 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, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Section 204 evidencing all or part of a series of Securities, issued to the
Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
- 2 -
14
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof
constituting Funded Debt by reason of being renewable or extendible) and (b)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the most recent
consolidated balance sheet of the Company and its consolidated Subsidiaries and
computed in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee
in the United States of America at which at any particular time its corporate
trust business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Debt" shall have the meaning ascribed to it in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depository for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934, as amended; and if at any time there
is more than one such Person, `Depository' as used with respect to the
Securities of any series shall mean the Depository with respect to the
Securities of such series.
"Domestic Subsidiary" means a Subsidiary (a) substantially all the
fixed assets of which are located, or substantially all the business of which
is carried on, within the United States of America, or (b) which owns or leases
any Principal Domestic Manufacturing Property, except that such term shall
exclude any Subsidiary the principal business of which is the financing or
ownership of the operations of the Company or its Subsidiaries outside the
United States of America (but such Subsidiary shall be excluded only so long as
it shall neither own nor lease any Principal Domestic Manufacturing Property).
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof is
to be determined or having a maturity of less than 12 months but by its terms
being renewable or extendible beyond 12 months from such date at the option of
the borrower.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"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 pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act
- 3 -
15
that are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also include
the terms of particular series of Securities established as contemplated by
Section 301.
"interest", when used with respect to an Original Issue Discount
security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration or acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1004 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company or other counsel acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
- 4 -
16
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 301 on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security
and (iii) Securities owned by the Company or any other obligor upon the
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"pari passu", when used with respect to the ranking of any Debt of
any Person in relation to other debt of such Person, means that each such Debt
(a) either (i) is not subordinate in right of payment to any other Debt of such
person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any Debt of such Person as
to which the other is not so subordinate.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Principal Domestic Manufacturing Property" means any building,
structure or other facility, together with the land upon which it is erected
and fixtures comprising a part thereof, used primarily for manufacturing,
processing or warehousing of the Company's products and located in the United
States of America, owned or leased by the Company or any Subsidiary, the gross
book value (without deduction of any depreciation reserves) of which on the
date as of which the determination is being made exceeds 1% of Consolidated Net
Tangible Assets, other than any such building, structure or other facility or
portion thereof or any such land or fixture (i) which is financed by
obligations issued by a State, a Territory, or a possession of the United
States, or any political subdivision of any of the
- 5 -
17
foregoing, or the District of Columbia, the interest on which is excludable
from gross income of the holders thereof pursuant to the provisions of Section
103(a)(1) of the Internal Revenue Code or the provisions of Section 745 of
Title 48 of the United States Code (or any successor to such provisions) as in
effect at the time of the issuance of such obligations, or (ii) which, in the
opinion of the Board of Directors of the Company, is not of material importance
to the total business conducted by the Company and its Subsidiaries as an
entirety.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" shall mean the principal (including sinking
fund payments) of, and premium, if any, and interest on any indebtedness (other
than the Securities), whether outstanding on the date of execution of this
Indenture or thereafter created, incurred or assumed, which is for (a) money
borrowed by the Company, (b) indebtedness of the Company evidenced by notes,
debentures, bonds, securities or other instruments of indebtedness for the
payment of which the Company is responsible or liable, by guarantees or
otherwise, (c) obligations of the Company evidencing the purchase price for
acquisitions by the Company or a subsidiary other than in the ordinary course
of business, (d) money borrowed by others and assumed or guaranteed by the
Company, (e) capitalized lease obligations of the Company, and (f) renewals,
extensions, refundings, amendments and modifications of any indebtedness, of
the kind described in the foregoing clauses or of the instruments creating or
evidencing such indebtedness, unless, in each case, by the terms of the
instruments evidencing such indebtedness or such renewal, extension, refunding,
amendment or modification, it is provided that such indebtedness is not senior
in rights of payment to the Securities.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
- 6 -
18
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Yield to Maturity" means the yield to maturity calculated at the
time of issuance of a series of Securities, or, if applicable, at the most
recent redetermination of interest on such series, and calculated in accordance
with accepted financial practice.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to
- 7 -
19
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of any officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to
the first solicitation of a Holder of Securities of such series in respect of
any such action, or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day (or, if later,
the date of the most recent list of Holders required to be provided pursuant to
Section 701) prior to such first solicitation or vote, as the case may be.
With regard to any record date for action to be taken by the Holders of one or
more series of
- 8 -
20
Securities, only the Holders of Securities of such series on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
instrument, Attention: Corporate Secretary, or at any other
address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the
- 9 -
21
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of Ohio, exclusive of its
choice of law rules.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue with respect to the amount so payable for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
- 10 -
22
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, 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 Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
FERRO CORPORATION
___________________________________
No. ___________ $___________
Ferro Corporation, a corporation duly organized and existing under
the laws of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________________________, or registered
assigns, the principal sum of ________________________ Dollars ($_________) on
________________________ [if the Security is to bear interest prior to
Maturity, insert -- , and to pay interest thereon from ___________ or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ______________ and __________ in each year,
commencing ____________, at the rate of ____% per annum, until the principal
hereof is paid or made available for payment [if applicable, insert -- , and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of ____% per annum on any overdue principal and premium and on any
overdue installment of interest]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the _________ or ________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special
- 11 -
23
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture]. [If the Security is not to bear interest prior to
Maturity, insert -- The principal of this Security shall not bear interest
except in the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal of this
Security shall bear interest at the rate of ____% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such default in payment to the date payment of such principal
has been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ____% per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also
be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in __________, in
such coin or currency of [the United States of America] [insert other currency,
if applicable] as at the time of payment is legal tender for payment of public
and private debts [if applicable, insert -- ; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer or by transfer through the Automated
Clearing House mechanism to an account maintained by such Person with a bank in
the continental United States (so long as the Paying Agent has received proper
transfer instructions in writing at least five Business Days prior to the
Regular Record Date)].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, including without limitation,
provisions subordinating the payment of principal of and premium, if any, and
interest on the Securities to payment in full of all Senior Indebtedness as
defined in the Indenture. Such further provisions shall for all purposes have
the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
FERRO CORPORATION
By: ____________________
Attest:
_____________________
- 12 -
24
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of _________, 199_ (herein called the
"Indenture"), between the Company and ________________________, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
$____________].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not more than 60 or less than 30 days' notice by
mail, [if applicable, insert -- (1) on ____________ in any year commencing with
the year _______ and ending with the year _____ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after _____________, 19__], as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed [on or
before ________________, ___%, and if redeemed] during the 12-month period
beginning ______________ of the years indicated.
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not more than 60 or less than 30 days' notice by
mail, (1) on _______________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after _____________], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning _______________ of the years indicated,
- 13 -
25
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
_______________, redeem any Securities of this series as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation of,
any refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption on
_____________ in each year beginning with the year _______ and ending with the
year _____ of [not less than $________ ("mandatory sinking fund") and not more
than] $_________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made -- [in the
inverse order in which they become due].]
[if the Security is subject to redemption, insert -- In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Securities of this series are not
redeemable prior to maturity.]
[If the Security is not an Original Issue Discount Security,
Insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's
- 14 -
26
obligations in respect of the payment of the principal of and interest, if any,
on the Securities of this series shall terminate.]
The indebtedness evidenced by the Securities, including the
principal thereof and premium, if any, and interest thereon, is to the extent
and in the manner set forth in the Indenture expressly subordinated and subject
in right of payment to the prior payment in full of all Senior Indebtedness, as
defined in the Indenture, whether outstanding at the date of the Indenture or
thereafter incurred. This Security is issued subject to such provisions of the
Indenture, and each holder of this Security by accepting this Security agrees
to and shall be bound by such provisions and authorizes and directs the Trustee
on such holder's behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination as provided in the Indenture and
appoints the Trustee such holder's attorney-in-fact for any and all such
purposes. Each holder of this Security, by accepting the same, also agrees
that each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, shall be deemed to have purchased Senior Indebtedness in reliance
upon the covenants and provisions contained in the Indenture and this Security.
[The Indenture contains provisions for defeasance at any time of
[the entire indebtedness of this Security or] [certain restrictive covenants
and Events of Default with respect to this Security][, in each case] upon
compliance with certain conditions set forth therein.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities [of
each series] to be effected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding [of each series] to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities [of each series] at the time
Outstanding, on behalf of the Holders of all securities [of such series], to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium [and interest] on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the
Security Register, upon surrender of this Security for registration of transfer
at the office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are
- 15 -
27
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Additional Provisions Required in Book-Entry Security.
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially
the following form:
"This Security is a Book-Entry Security within the meaning
of the Indenture hereinafter referred to and is registered in
the name of a depository or a nominee of a Depository. This
Security is exchangeable for Securities registered in the name
of a person other than the Depository or its nominee only in
the limited circumstances described in the Indenture and may
not be transferred except as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository."
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
--------------------------------
By:
------------------------
Authorized Officer
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered and Outstanding under this Indenture is unlimited.
- 16 -
28
The Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution and, subject to Section
303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the securities of the series from all other
Securities of any other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be authenticated and
delivered under this Indenture (except for securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series
pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of
the series shall be payable, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest;
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which
any such interest shall be payable and the Regular Record Date for
any interest payable on any Interest Payment Date;
(6) the place or places where the principal of and
any premium and interest on Securities of the series shall be
payable;
(7) the period or periods within which, the price or
prices at which 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 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;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities
of the series shall be issuable;
(10) the currency, currencies or currency units in
which payment of the principal of and any premium and interest on
any Securities of the series shall be payable if other than the
currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding"
in Section 101;
(11) if the amount of payments of principal of or any
premium or interest on any Securities of the series may be
determined with reference to an index or formula, the manner in
which such amounts shall be determined;
- 17 -
29
(12) if the principal of or any premium or interest on
any Securities of the series is to be payable, at the election of
the Company or a Holder thereof, in one or more currencies or
currency units other than that or those in which the Securities
are stated to be payable, the currency, currencies or currency
units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms
and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) the application, if any, of Section 1302 or 1303
to the Securities of any series;
(15) whether the Securities of the series shall be
issued in whole or in part in the form of one or more Book-Entry
Securities and, in such case, the Depository with respect to such
Book-Entry Security or Securities and the circumstances under
which any Book-Entry Security may be registered for transfer or
exchange, or authenticated and delivered, in the name of a Person
other than such Depository or its nominee, if other than as set
forth in Section 305; and
(16) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture, except
as permitted by Section 901(5)).
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 the Board Resolution referred to above and (subject to Section 303)
set forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, 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 setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers and the seal impression on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that
- 18 -
30
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any Series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, 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
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been
established by or pursuant to Board Resolution as permitted by
Section 201, that such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been established in conformity
with the provisions of this Indenture; and
(c) 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 constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, 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
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and such documents reasonably contemplate
the issuance of all Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, for all purposes of this
- 19 -
31
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
or xerographically or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series of any authorized denominations and of
a like principal amount and tenor. Until so exchanged the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
- 20 -
32
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the
names of Persons other than the Depository for such Security or its nominee
only if (i) such Depository notifies the Company that it is unwilling or unable
to continue as Depository for such Book-Entry Security or if at any time such
Depository ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company executes and delivers to the
Trustee a Company Order that such Book-Entry Security shall be so exchangeable
or (iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities. Any Book-Entry Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Securities
registered in such names as such Depository shall direct.
Notwithstanding any other provision in this Indenture, a
Book-Entry Security may not be transferred except as a whole by the Depository
with respect to such Book-Entry Security to a nominee of such Depository or by
a nominee of such Depository to such Depository or another nominee of such
Depository.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
- 21 -
33
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, 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.
Every new Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of
such series (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 Interest proposed to be paid on
each Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities
of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
- 22 -
34
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the
Securities of such series are registered at the close of business
on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series 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.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 307), any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be destroyed in accordance with
the Trustee's customary practices.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
- 23 -
35
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
if money shall have been deposited with the Trustee pursuant to subclause (B)
of Clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
- 24 -
36
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity;
or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a Security of that
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than
a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and
continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or
other evidence of indebtedness for money borrowed in an aggregate
principal amount exceeding $10,000,000 by the Company or any
Domestic Subsidiary or under any mortgage, indenture or instrument
to which the Company or any Domestic Subsidiary is a party as an
obligor or by which either is bound and under which there may be
issued or by which there may be secured or evidenced any
indebtedness for money borrowed in an aggregate principal amount
exceeding $10,000,000, whether such indebtedness now exists or
shall hereafter be created, which default shall have resulted in
such indebtedness becoming or being declared due and payable prior
to the date on which it would otherwise have become due and
payable, without such acceleration having been rescinded or
annulled, or such indebtedness having been
- 25 -
37
discharged, within a period of 10 days after there shall have been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring
the Company to cause such acceleration to be rescinded or annulled
or cause such indebtedness to be discharged and stating that such
notice is a "Notice of Default" hereunder; provided, however, that
subject to the provisions of Section 601 and 602, the Trustee
shall not be deemed to have knowledge of such default unless
either (A) a responsible officer of the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action;
or
(8) Any other Event of Default provided with respect
to Securities of that series.
Upon receipt by the Trustee of any Notice of Default from any
Holder with respect to Securities of a series all or part of which is
represented by a Book-Entry Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join
in such Notice of Default, which record date shall be at the close of business
on the day the Trustee receives such Notice of Default. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such Notice of Default, whether or not such Holders remain
Holders after such record date; provided, that unless Holders of at least 25%
in principal amount of the Outstanding
- 26 -
38
Securities of such series, or their proxies, shall have joined in such Notice
of Default prior to the day which is 90 days after such record date, such
Notice of Default shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall prevent
a Holder, or a proxy of a Holder, from giving (i) after expiration of such
90-day period, a new Notice of Default identical to a Notice of Default which
has been canceled pursuant to the proviso to the preceding sentence, or (ii)
during any such 90-day period, an additional Notice of Default with respect to
any new or different fact or circumstance permitting the giving of a Notice of
Default with respect to Securities of such series, in either of which events a
new record date shall be established pursuant to the provisions of this Section
501.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount (or
specified amount) of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any,
on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor
in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the
rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 513.
- 27 -
39
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities
of a series all or part of which is represented by a Book-Entry Security, a
record date shall be established for determining Holders of Outstanding
Securities of such series entitled to join in such notice, which record date
shall be at the close of business on the day the Trustee receives such notice.
The Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to join in such notice, whether or not such
Holders remain Holders after such record date; provided, that unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, (i) after expiration of such
90-day period, a new written notice of declaration of acceleration or
rescission and annulment thereof, as the case may be, that is identical to a
written notice which has been canceled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional written notice
of declaration of acceleration with respect to Securities of such series, or an
additional written notice of rescission and annulment of any declaration of
acceleration with respect to any other Event of Default with respect to
Securities of such series, in either of which events a new record date shall be
established pursuant to the provisions of this Section 502.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and any premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
- 28 -
40
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 607; and
SECOND: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the
Securities 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 any premium
and interest, respectively.
- 29 -
41
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision (but subject to Article
Fourteen) in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
any premium and (subject to Section 307) any interest on such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
- 30 -
42
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed
may not lawfully be taken or if the Trustee in good faith by its
board of directors, the executive committee, or a trust committee
of directors or responsible officers of the Trustee shall
determine that the action or proceedings so directed would involve
the Trustee in personal liability or if the Trustee in good faith
shall so determine that the actions or forebearances specified in
or pursuant to such direction shall be unduly prejudicial to the
interests of holders of the Securities of the series not joining
in the giving of said direction, it being understood that (subject
to Section 601) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly
prejudicial to such holders.
Upon receipt by the Trustee of any such direction with respect to
Securities of a series all or part of which is represented by a Book-Entry
Security, the Trustee shall establish a record date for determining Holders of
Outstanding Securities of such series entitled to join in such direction, which
record date shall be at the close of business on the day the Trustee receives
such direction. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such direction,
whether or not such Holders remain Holders after such record date; provided,
that unless such majority in principal amount shall have been obtained prior to
the day which is 90 days after
- 31 -
43
such record date, such direction shall automatically and without further action
by any Holder be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving, (i) after
expiration of such 90-day period, a new direction identical to a direction
which has been canceled pursuant to the provisions to the preceding sentence or
(ii) during any such 90-day period, a new direction contrary to or different
from such direction, in either of which events a new record date shall be
established pursuant to the provisions of this Section 512.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or
their duly designated proxies, and only such Persons, shall be entitled to
waive any default hereunder, whether or not such Holders remain Holders after
such record date; provided, that unless such majority in principal amount shall
have been obtained prior to the date which is 90 days after such record date,
any such waiver previously given shall automatically and without further action
by any Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the
- 32 -
44
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has
not been cured or waived) the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(1) prior to the occurrence of an Event of Default
and after the curing or waiving of all such Events of Default
which may have occurred:
(A) the duties and obligations of the Trustee
shall be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(B) in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in
the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Indenture;
(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; and
(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 such series.
- 33 -
45
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 shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified
in Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence
of indebtedness 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 or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(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, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further
- 34 -
46
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent
or attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
- 35 -
47
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee
incurs expenses after the occurrence of an Event of Default
specified in Section 501(6) or (7) with respect to the Company,
the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authority and its Corporate
Trust Office in the United States of America. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements
of Section 611.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving 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 the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 608 after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
- 36 -
48
(2) the Trustee shall cease to be eligible
under Section 609 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or
more series, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a security of such
series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with
respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106.
Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
Section 611. 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
- 37 -
49
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) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the 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
cotrustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the 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 all 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) and
(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.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
- 38 -
50
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. 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 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 (unless it is an Affiliate of the Trustee)
and subject to supervision or examination by Federal or State authority. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by
- 39 -
51
first-class mail, postage prepaid, to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
---------------------------
As Trustee
By:
---------------------------
As Authenticating Agent
By:
---------------------------
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses Of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July
15 in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as
of the preceding January 1 or July 1, as the case may be, 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
- 40 -
52
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with
other Holders with respect to their rights under this Indenture or
under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act
within 60 days after May 15 of each year commencing with the year
1993.
(b) The Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security
Register, a brief report with respect to the character and amount
of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee
(as such) since the date of the last report transmitted pursuant
to Subsection (a) of this Section (or if no such report has yet
been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim
a lien or charge, prior to that of the Securities, on property or
funds held or collected by it as Trustee and which it has not
previously reported pursuant to this Subsection, except that the
Trustee shall not be required (but may elect) to report such
advances to the Holders of Securities of any series if such
advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities of such series Outstanding at
such time, such report to be transmitted within 90 days after such
time.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act
- 41 -
53
of 1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or
merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety 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, the properties and assets of the Company
substantially as an entirety 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, in
form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on and any sinking
fund payment in respect of, 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 and treating any indebtedness which becomes an
obligation of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of 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;
(3) if, as a result of any such consolidation or
merger or such conveyance, transfer or lease, properties or assets
of the Company or a Domestic Subsidiary would become subject to a
Mortgage, which would not be permitted by Section 1008, the
Company or such successor Person, as the case may be, shall take
such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) 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.
- 42 -
54
Section 802. Successor Person Substituted.
Upon any consolidation of the Company with or merger of the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination
(i) shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled
to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii)
shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to the
requirements of Section 1008 or otherwise; or
- 43 -
55
(7) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided, that
such action pursuant to this clause (9) shall not adversely affect
the interests of the Holders of Securities of any series in any
material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin, currency or
currency unit in which, any Security or any premium or any
interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1010, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, provided
however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this Section and Section
1010, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
- 44 -
56
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 90 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
(except to the extent required in the case of a supplemental indenture entered
into under Section 901(8)) be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
- 45 -
57
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of and
any premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
- 46 -
58
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of and any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in compliance with all of the terms, provisions,
covenants and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default with respect to or shall not be in compliance with all such terms,
provisions, covenants and conditions, specifying all such defaults or events of
noncompliance and the nature and status thereof of which they may have
knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be
- 47 -
59
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the
judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate actions or proceedings.
Section 1008. Restrictions on Secured Debt.
The Company will not itself, and will not permit any Domestic
Subsidiary to, incur, issue, assume or guarantee any indebtedness for money
borrowed represented by notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (such notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed being hereinafter in this Article
called "Debt"), secured by a Mortgage on any Principal Domestic Manufacturing
Property of the Company or any Domestic Subsidiary, or any shares of stock or
Debt of any Domestic Subsidiary, without effectively providing that the
Outstanding Securities (together with, if the Company shall so determine, any
other Debt of the Company or such Domestic Subsidiary then existing or
thereafter created which is not subordinate to the Securities) shall be secured
equally and ratably with (or prior to) such secured Debt (for the purpose of
providing such equal and ratable security, the principal amount of Outstanding
Securities of any series of Original Issue Discount Securities shall be such
portion of the principal amount as may be specified in the terms of that series
that would be payable upon acceleration of the Maturity thereof at the time of
such determination), so long as such secured Debt shall be so secured, unless,
after giving effect thereto, the aggregate amount of all such secured Debt plus
all Attributable Debt of the Company and its Domestic Subsidiaries in respect
of sale and leaseback transactions (as defined in Section 1009) would not
exceed 10% of Consolidated Net Tangible Assets; provided, however, that this
Section shall not apply to, and there shall be excluded from secured Debt in
any computation under this Section, Debt secured by:
(1) Mortgages on property of, or on any shares of
stock or Debt of, any corporation existing at the time such
corporation becomes a Domestic Subsidiary;
(2) Mortgages in favor of the Company or any Domestic
Subsidiary;
(3) Mortgages on property of the Company or a
Domestic Subsidiary in favor of the United States of America or
any State thereof, or Puerto Rico, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or Puerto Rico, or in favor of any
other country,
- 48 -
60
or any political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute;
(4) Mortgages on property, shares of stock or Debt
existing at the time of acquisition thereof (including acquisition
through merger or consolidation) or to secure the payment of all
or any part of the purchase price or construction or improvement
cost thereof or to secure any Debt incurred prior to, at the time
of, or within 120 days after, the acquisition of such property or
shares or Debt or the completion of any such construction or
improvement for the purpose of financing all or any part of the
purchase price or construction or improvement cost thereof;
(5) Mortgages securing obligations issued by a State,
territory or possession of the United States, any political
subdivision of any of the foregoing, or the District of Columbia,
or any instrumentality of the foregoing to finance the acquisition
or construction of property, and on which the interest is not, in
the opinion of tax counsel of recognized standing or in accordance
with a ruling of the Internal Revenue Service, includable in gross
income of the holder by reason of Section 103(a)(1) of the
Internal Revenue Code (or any successor to such provision as in
effect at the time of issuance of such obligations); and
(6) Any extension, renewal or replacement (or
successive extensions, renewals or replacements), as a whole or in
part, of any Debt secured by any Mortgage referred to in the
foregoing clauses (1) to (5), inclusive; provided, that (i) such
extension, or replacement Mortgage shall be limited to all or a
part of the same property, shares of stock or Debt that secured
the Mortgage extended, renewed or replaced (plus improvements on
such property) and (ii) the Debt secured by such Mortgage at such
time is not increased.
Section 1009. Limitation on Sales and Leasebacks.
The Company will not itself, and it will not permit any Domestic
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Company or any Subsidiary) or to
which any such lender or investor is a party, providing for the leasing by the
Company or any Domestic Subsidiary for a period, including renewals, in excess
of three years of any Principal Domestic Manufacturing Property which has been
or is to be sold or transferred, more than 120 days after the acquisition
thereof or the completion of construction and commencement of full operation
thereof, by the Company or any Domestic Subsidiary to such lender or investor
or to any person to whom funds have been or are to be advanced by such lender
or investor on the security of such Principal Domestic Manufacturing Property
(herein referred to as a "sale and leaseback transaction") unless either:
(1) the Company or such Domestic Subsidiary could
create Debt secured by a Mortgage pursuant to Section 1008 on the
Principal Domestic Manufacturing Property to be leased back in an
amount equal to the Attributable Debt with respect to such sale
and leaseback transaction without equally and ratably securing the
Outstanding Securities, or
(2) the Company within 120 days after the sale or
transfer shall have been made by the Company or by any such
Domestic Subsidiary, applies an amount equal to the greater of (i)
the net proceeds of the sale of the Principal Domestic
Manufacturing Property sold and leased back pursuant to such
arrangement or (ii) the fair market value of the Principal
Domestic Manufacturing Property so sold and leased back at the
time of entering into such arrangements
- 49 -
61
(as determined by any two of the following: the Chairman of the
Board of the Company, its President, any Vice President, Finance
of the Company, its Treasurer and its Controller) to the
retirement of Funded Debt of the Company which is pari passu with
the Outstanding Securities; provided, that the amount to be
applied to the retirement of Funded Debt of the Company shall be
reduced by (a) the principal amount of any Securities delivered
within 120 days after such sale to the Trustee for retirement and
cancellation, and (b) the principal amount of such Funded Debt,
other than Securities, voluntarily retired by the Company within
120 days after such sale. Notwithstanding the foregoing, no
retirement referred to in this clause (2) may be effected by
payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 to 1009, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed, the Holders on such record
date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any such term, provision or condition hereunder, whether or
not such Holders remain Holders after such record date; provided, that unless
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall have waived such term, provision or condition
prior to the date which is 90 days after such record date, any such waiver
previously given shall automatically and without further action by any Holder
be canceled and of no further effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee in its sole discretion),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of
the Securities to be redeemed. In the case of any redemption of Securities
prior to the expiration of any
- 50 -
62
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed) the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price (and interest, if any),
(3) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
(and interest, if any) will become due and payable upon each such
Security or portion thereof to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to
be surrendered for payment of the Redemption Price (and interest,
if any), and
(6) that the redemption is for a sinking fund, if
such is the case.
- 51 -
63
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Book-Entry Security is so surrendered, such new Security so issued shall be a
new Book-Entry Security.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
- 52 -
64
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in 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 been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 90 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of
(a) defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article Thirteen, shall be applicable to the
Securities of such series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such series, elect
to have either Section 1302 (if applicable) or Section 1303 (if applicable) be
applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this Article Thirteen.
- 53 -
65
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series on and
after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series
to receive, solely from the trust fund described in Section 1304 as more fully
set forth in such Section, payments of the principal of (and premium, if any)
and interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003 and such obligations as shall be ancillary thereto, (C) the rights,
powers, trusts, duties, immunities and other provisions in respect of the
Trustee hereunder and (D) this Article Thirteen. Subject to compliance with
this Article Thirteen, the Company may exercise its option under this Section
1302 notwithstanding the prior exercise of its option under Section 1303 with
respect to the Securities of such series.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Sections 801,
1008 and 1009 (and any covenant applicable to such Securities that are
determined pursuant to Section 301 to be subject to this provision) and the
occurrence of an event specified in Section 501(4) (with respect to any of
Sections 801, 1008 or 1009) (and any other Event of Default applicable to such
Securities that are determined pursuant to Section 301 to be subject to this
provision) shall not be deemed to be an Event of Default with respect to the
Outstanding Securities of such series after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that, with respect to the Outstanding Securities
of such series, the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any such Section
or Clause whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or Clause or by reason of any reference in any such
Section or Clause to any other provision herein or in any other document, but
the remainder of this Indenture and such Securities shall be unaffected
thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 1302 or Section 1303 to the Outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to
comply with the provisions of this Article Thirteen applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any
payment, money in an amount, or (C) a
- 54 -
66
combination thereof, sufficient, without reinvestment, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge,
the principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Maturity of such
principal, premium, if any, or interest. Before such a deposit
the Company may make arrangements satisfactory to the Trustee for
the redemption of Securities at a future date or dates in
accordance with Article Eleven, which shall be given effect in
applying the foregoing. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of
the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, provided that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(2) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to the Securities of such series shall have occurred and
be continuing (A) on the date of such deposit or (B) insofar as
subsections 501(6) and (7) are concerned, at any time during the
period ending on the 121st day after the date of such deposit or,
if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of
such deposit (it being understood that the condition in this
condition shall not be deemed satisfied until the expiration of
such period).
(3) Such defeasance or covenant defeasance shall not
(A) cause the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 608 or for purposes of
the Trust Indenture Act with respect to any securities of the
Company or (B) result in the trust arising from such deposit to
constitute, unless it is qualified as, a regulated investment
company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound.
(5) In the case of an election under Section 1302,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such defeasance had not occurred.
- 55 -
67
(6) In the case of an election under Section 1303,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the
defeasance under Section 1302 or the covenant defeasance under
Section 1303 (as the case may be) have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(but not including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Securities, of all sums due and to become
due thereon in respect of principal (and premium, if any) and interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1302 or 1303 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under the Securities of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Thirteen until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 1302 or
1303; provided, however, that if the Company makes any payment of principal of
(and premium, if any) or interest on any such Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held
by the Trustee or the Paying Agent.
- 56 -
68
ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Agreement to Subordinate. The Company covenants
and agrees, and each holder of Securities issued hereunder by such holder's
acceptance thereof, whether upon original issue or upon transfer or assignment
thereof, likewise covenants and agrees, that the principal of and premium, if
any, and interest on all Securities issued hereunder shall, to the extent and
in the manner herein set forth, be subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness.
Section 1402. No Payments on Securities if Senior Indebtedness
in Default.
(a) No payment on account of principal (including
sinking fund payments) of or premium, if any, or interest on the Securities or
on account of the purchase or other acquisition of Securities shall be made by
or on behalf of the Company if at the time that such payment is to be made (or
immediately after giving effect thereto) there shall (or would) exist a default
with respect to any Senior Indebtedness beyond the applicable period of grace,
if any, so that, if such Senior Indebtedness shall not already have matured,
holders of such Senior Indebtedness would be entitled to accelerate the
maturity thereof, and such default shall (or would) not have been cured or
waived or shall (or would) not have ceased to exist; provided, however, that
sinking fund obligations under Section 1202 may be satisfied by use of
Securities which were acquired prior to such default by the Company or the
Trustee (whether by exchange or otherwise); and provided further that the
provisions of this Section 1402 are subject to the further provisions of
Section 1403.
(b) In the event that notwithstanding this Section 1402,
any payment by or on behalf of the Company of any kind or character to which
the holders of the Securities or the Trustee would be entitled but for the
provisions of this Section 1402 prohibiting such payment, shall be received by
the Trustee or any paying agent or the holders of the Securities, such payment
shall be held in trust for the benefit of, and shall be paid over and delivered
to the holders of Senior Indebtedness or their respective representatives, or
to the trustee or trustees under any indenture pursuant to which any instrument
evidencing any of the Senior Indebtedness remaining unpaid may have been
issued, as their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay all Senior Indebtedness in full in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness, provided that if there be any unliquidated obligations as
aforesaid there shall be paid an appropriate amount as a reserve therefor.
Section 1403. Priority of Senior Indebtedness Upon Distribution
of Assets. Upon any distribution of assets of the Company in connection with
any dissolution or winding up or complete liquidation or reorganization or
arrangement of the Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, or upon an assignment of the
assets of the Company for the benefit of creditors or any marshalling of the
assets and liabilities of the Company or other similar circumstances,
(a) the holders of all Senior Indebtedness shall first
be entitled to receive payment in full thereof, and provision satisfactory to
holders of such Senior Indebtedness shall be made for payment in full of any
unliquidated obligations which may later become liquidated, before the holders
of the Securities shall be entitled to receive any payment or distribution of
cash, properties or securities of any kind or character (other than securities
of
- 57 -
69
the Company as reorganized or modified by similar proceedings or of any other
corporation provided for by a plan of reorganization or modification by similar
proceedings, the payment of which is subordinate, at least to the extent set
forth in this Article Fourteen with respect to the Securities, to payment in
full, without modification or diminution by such reorganization or
modification, of all Senior Indebtedness) on account of the principal
(including sinking fund payments) of or premium, if any, or interest on the
Securities, or on account of the purchase or other acquisition by or on behalf
of the Company of Securities; and
(b) any payment or distribution of assets of the Company
of any kind or character whether in cash, property or securities (other than
securities of the Company as reorganized or modified by similar proceedings or
of any other corporation provided for by a plan of reorganization or
modification by similar proceedings, the payment of which is subordinate, at
least to the extent set forth in this Article Fourteen with respect to the
Securities, to payment in full, without modification or diminution by such
reorganization or modification, of all Senior Indebtedness) to which the
holders of the Securities or the Trustee would be entitled, except for the
provisions of this Article Fourteen, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or any other person
making such payment or distribution directly to the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any of such
Senior Indebtedness remaining unpaid may have been issued, as their respective
interests may appear, for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness, provided that if there be any unliquidated
obligations as aforesaid there shall be reserved an appropriate amount
therefor; and
(c) in the event that, notwithstanding this Section
1403, any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than securities of
the Company as reorganized or modified by similar proceedings or of any other
corporation provided for by a plan of reorganization or modification by similar
proceedings, the payment of which is subordinate, at least to the extent set
forth in this Article Fourteen with respect to the Securities, to payment in
full, without modification or diminution by such reorganization or
modification, of all Senior Indebtedness) prohibited by this Section 1403 shall
be received by the Trustee or any paying agent or the holders of the Securities
before all Senior Indebtedness is paid in full or provision is made for such
payment in accordance with the terms of such Senior Indebtedness, such payment
or distribution shall be held in trust for the benefit of and shall be paid
over or delivered to the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of the Senior Indebtedness remaining
unpaid may have been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness, provided that if there be any unliquidated
obligations as aforesaid there shall be paid an appropriate amount as a reserve
therefor; and
(d) the consolidation of the Company with, or the merger
of the Company into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation or
corporations upon the terms and condition provided in Article Eight shall not
be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 1403 if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article Eight, and a reorganization within the meaning of Section
368(a) of the Internal Revenue
- 58 -
70
Code of 1954, as amended, or such provision's successors, shall not be deemed
(unless part of a bankruptcy, insolvency or receivership or similar proceeding
with respect to the Company) to be a reorganization for purposes of this
Section 1403.
Section 1404. Trustee and Holders of Securities May Rely on
Court Order or Certificate of Liquidating Agent. Upon any payment or
distribution of assets of the Company referred to in this Article Fourteen, the
Trustee, subject to the provisions of Section 601, and the holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding-up, liquidation or
reorganization proceedings are pending or upon any certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution delivered to the Trustee or to the holders of
Securities, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Fourteen.
Section 1405. Subrogation of Holders of the Securities. Subject
to the payment in full of all Senior Indebtedness, or provision being made as
aforesaid for its payment, the holders of the Securities shall be subrogated to
whatever rights the holders of Senior Indebtedness may have to receive payments
or distributions of assets of the Company made on the Senior Indebtedness until
the principal of and premium, if any, and interest on the Securities shall be
paid or satisfied in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the holders of the Securities or the Trustee
would be entitled except for the provisions of this Article Fourteen shall, as
among the Company, its creditors other than the holders of Senior Indebtedness,
and the holders of Securities, be deemed to be payment by the Company to or on
account of Senior Indebtedness, it being understood that the provisions of this
Article Fourteen are and are intended solely for the purpose of defining the
relative rights of the holders of the Securities, on the one hand, and the
holders of Senior Indebtedness, on the other hand.
Section 1406. Obligation of Company to Pay Unconditional.
Nothing contained in this Article Fourteen or elsewhere in this Indenture, or
in the Securities, is intended to or shall impair as between the Company and
the holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Securities, the principal of
and premium, if any, and interest on the Securities, as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Securities and creditors
of the Company other than the holders of Senior Indebtedness, nor shall
anything in this Article Fourteen prevent the Trustee or the holders of any
Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article Fourteen of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
Section 1407. Authorization of Holders of Securities to Trustee
to Effect Subordination. Each holder of Securities by his acceptance thereof
authorizes and directs the Trustee on behalf of such holder to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article Fourteen and appoints the Trustee attorney-in-fact of such
holder for any and all such purposes, including, in the event of any voluntary
or involuntary dissolution, winding-up, liquidation, reorganization,
arrangement or similar proceeding relating to the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise), the
- 59 -
71
immediate filing of a claim for the unpaid balance of such holder's Securities
in the form required in said proceedings and the causing of said claim to be
approved. If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then any holder or holders of Senior
Indebtedness shall have the right to file and are hereby authorized to file an
appropriate claim for such unpaid balance of such Securities on behalf of the
holder or holders thereof.
Section 1408. Securities Otherwise Payable. Nothing contained
in this Article Fourteen or elsewhere in this Indenture, or in any of the
Securities, shall affect the obligation of the Company to make, or prevent the
Company from making payments at any time of principal of (including sinking
fund payments) or premium, if any, or interest on the Securities or from
depositing with the Trustee or any paying agent moneys for such payments, or
from purchasing or otherwise acquiring Securities, except as otherwise provided
in this Article.
Section 1409. Notice to Trustee of Facts Prohibiting Payments.
Notwithstanding any of the provisions of this Article Fourteen or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee, unless and until the Trustee shall have received
written notice of such facts at the principal office of such Trustee, from the
Company or from one or more holders of Senior Indebtedness or from any trustee
therefor.
Section 1410. Rights of the Trustee. The Trustee shall be
entitled to all the rights set forth in this Article Fourteen with respect to
any Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 608 or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Fourteen shall apply to claims of, or payment to, the
Trustee under or pursuant to Section 607.
Section 1411. Rights of Holders of Senior Indebtedness Not
Impaired. No right of any present or future holder of any Senior Indebtedness
of the Company to enforce the subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
The provisions of this Article Fourteen are intended to be for
the benefit of and shall be enforceable directly by the holders of Senior
Indebtedness. Each holder of any Security by his acceptance thereof
acknowledges and agrees that the foregoing subordination provisions are, and
are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness, whether such Senior Indebtedness was created or acquired
before or after the issuance of the Securities, to acquire and continue to
hold, or to continue to hold, such Senior Indebtedness, and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness. Notice of any default in the payment of any
Senior Indebtedness and notice of acceptance of the provisions hereof are
hereby expressly waived. No waiver, forbearance or release by any holder of
Senior Indebtedness under such Senior Indebtedness or under this Article
Fourteen shall constitute a release of any of the obligations or liabilities of
the Trustee or holders of the Securities provided in this Article Fourteen.
- 60 -
72
Section 1412. No Fiduciary Duty to Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of the
covenants and obligations as are specifically set forth in this Article
Fourteen, and no implied covenants or obligations with respect to the holders
of Senior Indebtedness shall be implied in this Indenture against the Trustee.
The Trustee shall not be liable to any holders of Senior Indebtedness if the
Trustee shall in good faith pay over or distribute to or on behalf of holders
of Securities or the Company money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article Fourteen.
Section 1413. Other Provisions Subject Hereto. Except as
expressly stated in this Article Fourteenth, and notwithstanding anything
contained in this Indenture to the contrary, all the provisions of this
Indenture and the Securities are subject to the provisions of this Article
Fourteen.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
FERRO CORPORATION
By:
---------------------------
Title:
------------------------
Attest:
--------------------------
Secretary
-------------------------------
By:
---------------------------
Title:
------------------------
Attest:
--------------------------
Assistant Secretary
- 61 -
73
STATE OF OHIO )
) ss.:
COUNTY OF CUYAHOGA )
On the ____ of ______________, 199_, before me personally came
______________ to me known, who, being by me duly sworn, did depose and say
that he is ____________________________________ of Ferro Corporation, one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
_________________________________
______________, Notary Public
STATE OF OHIO )
) ss.:
COUNTY OF CUYAHOGA )
On the ____ day of ______________, 199_, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is a __________________ of __________________________, the _________________
described in and which executed the foregoing instrument; that he knows the seal
of said __________________________________; that the seal affixed to said
instrument is such _______________________________ seal; that it was so affixed
by authority of the Board of Directors of said _______________________, and that
he signed his name thereto by like authority.
_________________________________
______________, Notary Public
- 62 -
