Exhibit 4.1
FORM OF INDENTURE
__________________________________________________________________
CBRL GROUP, INC.
TO
BANKERS TRUST COMPANY, as Trustee
INDENTURE
Dated as of ____________, 1999
_________________________________________________________________
CROSS REFERENCE SHEET*
_________________
*Certain Sections of this Indenture relating to Sections 310 through
318(a), inclusive, of the Trust Indenture Act of 1939, as amended:
Section of Trust Indenture Act of 1939 Section of Indenture
310(a)(1) and (2) 6.10
310(a)(3) and (4) Inapplicable
310(a)(5) 6.10
310(b) 6.10
310(c) Inapplicable
311(a) 6.11
311(b) 6.11
311(c) Inapplicable
312(a) 4.1
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 6.6
313(b) 6.6
313(c) 6.6
313(d) 6.6
314(a) 4.3
314(b) Inapplicable
314(c)(1) and (2) 2.4 and 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) 11.5
315(a) 6.1(b)
315(b) 6.5
315(c) 6.1(a)
315(d)(1) 6.1(b)(1) and (2)
315(d)(2) 6.1(c)(2)
315(d)(3) 6.1(c)(3)
315(e) 5.11
316(a)(1)(A) 5.9
316(a)(1)(B) 5.10
316(a)(2) Inapplicable
316(b) 5.7
316(c) 2.7
317(a)(1) and (2) 5.2
317(b) 3.2 and 3.3
318(a) 11.7
_______________________
* This cross reference sheet shall not, for any purpose, be deemed to be
a part of this Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act of 1939, as amended, which provides that the provisions of
Sections 310 through 317 of such Act are a part of and govern every
qualified indenture, whether or not physically contained therein.
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
Authorization of Indenture 1
Compliance with Legal Requirements 1
Purpose of and Consideration for Indenture 1
ARTICLE I DEFINITIONS 1
SECTION 1.1 Certain Terms Defined 1
"Attributable Debt" 2
"Authorized Newspaper" 2
"Board of Directors" 2
"Board Resolution" 2
"Business Day" 2
"Commission" 2
"Composite Rate" 2
"Consolidated Funded Indebtedness" 3
"Consolidated Net Tangible Assets" 3
"Consolidated Subsidiaries" 3
"Corporate Trust Office" 3
"Coupon" 3
"Depositary" 3
"Event of Default" 3
"Funded Indebtedness" 3
"Holder", "Holder of Securities,
"Securityholder" 4
"Indebtedness" 4
"Indenture" 4
"Interest" 4
"Issuer" 4
"Issuer Order" 4
"Lien" 4
"Net Tangible Assets" 4
"Officers' Certificate" 5
"Opinion of Counsel" 5
"original issue date" 5
"Original Issue Discount Security" 5
"Outstanding" 6
"Person" 6
"principal" 7
"Principal Property" 7
"Registered Global Security" 7
"Registered Security" 7
"Responsible Officer" 7
"Security" or "Securities" 7
"Subsidiary" 7
"Trust Indenture Act of 1939" 7
"Trustee" 7
"Unregistered Security" 8
"U.S. Government Obligations" 8
"Vice president" 8
"Yield to Maturity" 8
ARTICLE II SECURITIES 8
SECTION 2.1 Forms Generally 8
SECTION 2.2 Form of Trustee's Certificate of
Authentication 8
SECTION 2.3 Amount Unlimited; Issuable in Series 9
SECTION 2.4 Authentication and Delivery of Securities 12
SECTION 2.5 Execution of Securities 14
SECTION 2.6 Certificate of Authentication 15
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest 15
SECTION 2.8 Registration, Transfer and Exchange 16
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities 20
SECTION 2.10Cancellation of Securities; Destruction
Thereof 21
SECTION 2.11Temporary Securities 22
ARTICLE IIICOVENANTS OF THE ISSUER 23
SECTION 3.1 Payment of Principal and Interest 23
SECTION 3.2 Offices for Payments, etc. 23
SECTION 3.3 Paying Agents 24
SECTION 3.4 Written Statement to Trustee 25
SECTION 3.5 Limitation on Liens 25
SECTION 3.6 Limitation on Sale and LeaseBack 28
ARTICLE IVSECURITYHOLDERS LISTS AND REPORTS BY THE 28
SECTION 4.1Issuer to Furnish Trustee Information as
to Names and Addresses of Securityholders 28
SECTION 4.2 Preservation and Disclosure of
Securityholders Lists 29
SECTION 4.3 Reports by the Issuer 30
ARTICLE VREMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT 31
SECTION 5.1Event of Default Defined;
Acceleration of Maturity; Waiver of
Default 31
SECTION 5.2Collection of Indebtedness by Trustee;
Trustee May Prove Debt 34
SECTION 5.3 Application of Proceeds 37
SECTION 5.4 Suits for Enforcement 38
SECTION 5.5Restoration of Rights on Abandonment
of Proceedings 38
SECTION 5.6 Limitations on Suits by Securityholders 38
SECTION 5.7Unconditional Right of Securityholders
to Institute Certain Suits 39
SECTION 5.8Powers and Remedies Cumulative;
Delay or Omission Not Waiver of Default 39
SECTION 5.9 Control by Holders of Securities 40
SECTION 5.10Waiver of Past Defaults 40
SECTION 5.11Right of Court to Require Filing of
Undertaking to Pay Costs 41
ARTICLE VICONCERNING THE TRUSTEE 42
SECTION 6.1 Duties of Trustee 42
SECTION 6.2 Rights of Trustee 43
SECTION 6.3 Individual Rights of Trustee 45
SECTION 6.4 Trustee's Disclaimer 45
SECTION 6.5 Notice of Defaults 45
SECTION 6.6 Reports by Trustee to Holders 45
SECTION 6.7 Compensation and Indemnity 45
SECTION 6.8 Replacement of Trustee 46
SECTION 6.9 Successor Trustee by Merger 47
SECTION 6.10 Eligibility; Disqualification 47
SECTION 6.11Preferential Collection of Claims
Against Issuer 47
ARTICLE VIICONCERNING THE SECURITYHOLDERS 48
SECTION 7.1Evidence of Action Taken by
Securityholders 48
SECTION 7.2Proof of Execution of Instruments and of
Holding of Securities 48
SECTION 7.3 Holders to Be Treated as Owners 49
SECTION 7.4Securities Owned by Issuer Deemed Not
Outstanding 49
SECTION 7.5 Right of Revocation of Action Taken 50
ARTICLE VIIISUPPLEMENTAL INDENTURES 51
SECTION 8.1Supplemental Indentures Without Consent of
Securityholders 51
SECTION 8.2Supplemental Indentures With Consent of
Securityholders 52
SECTION 8.3 Effect of Supplemental Indenture 54
SECTION 8.4 Documents to Be Given to Trustee 54
SECTION 8.5Notation on Securities in Respect of
Supplemental Indentures 54
ARTICLE IXCONSOLIDATION, MERGER, SALE OR CONVEYANCE 54
SECTION 9.1 Issuer May Consolidate, etc., on Certain
Terms 54
SECTION 9.2 Successor Issuer Substituted 55
SECTION 9.3 Opinion of Counsel Delivered to Trustee 56
ARTICLE XSATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS 56
SECTION 10.1Satisfaction and Discharge of Indenture 56
SECTION 10.2Application by Trustee of Funds Deposited
for Payment of Securities 59
SECTION 10.3Repayment of Moneys Held by Paying
Agent 59
SECTION 10.4Return of Moneys Held by Trustee
and Paying Agent Unclaimed for Two Years 59
SECTION 10.5Indemnity for U.S. Government Obligations 60
ARTICLE XI MISCELLANEOUS PROVISIONS 60
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability 60
SECTION 11.2Provisions of Indenture for the
Sole Benefit of Parties and Holders
of Securities and Coupons 60
SECTION 11.3Successors and Assigns of Issuer Bound
by Indenture 60
SECTION 11.4Notices and Demands on Issuer, Trustee
and Holders of Securities and Coupons 60
SECTION 11.5Officers' Certificates and Opinions
of Counsel; Statements to Be Contained
Therein 61
SECTION 11.6Payments Due on Saturdays, Sundays
and Holidays 62
SECTION 11.7Conflict of Any Provision of Indenture
with Trust Indenture Act of 1939 63
SECTION 11.8New York Law to Govern 63
SECTION 11.9Counterparts 63
SECTION 11.10 Effect of Headings 63
ARTICLE XIIREDEMPTION OF SECURITIES AND SINKING FUNDS 63
SECTION 12.1Applicability of Article 63
SECTION 12.2Election to Redeem; Notice of
Redemption; Partial Redemptions 63
SECTION 12.3Payment of Securities Called for
Redemption 65
SECTION 12.4Exclusion of Certain Securities
from Eligibility for Selection for
Redemption 66
SECTION 12.5Mandatory and Optional Sinking Funds 66
THIS INDENTURE, dated as of ________________, 1999, is made and entered
into by and between CBRL GROUP, INC., a Tennessee corporation (the
"Issuer"), and BANKERS TRUST COMPANY, as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication,
delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and
agree for the equal and proportionate benefit of the respective holders
from time to time of the Securities and of the Coupons, if any,
appertaining thereto as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939 or the definitions of which in the
Securities Act of 1933, as amended, are referred to in the Trust
Indenture Act of 1939, including terms defined therein by reference to
the Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said force at the date
of this Indenture. All accounting terms used herein and not expressly
defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term "generally
accepted accounting principles" means such accounting principles as are
generally accepted at the time of any computation. 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. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular.
"Attributable Debt" shall have the meaning set forth in Section 3.5.
"Authorized Newspaper" means a newspaper (which will be, if practicable,
The Wall Street Journal (eastern edition)) published at least once a day
for at least five days in each calendar week and of general circulation
in The City of New York. If it shall be impractical in the opinion of
the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute
a sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Issuer to have been duly
adopted, or consented to, by the Board of Directors and to be in full
force and effect and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on
which banking institutions are authorized or required by law or
regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934,
as amended, or if at any time after the execution and delivery of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then the body
performing such duties on such date.
"Composite Rate" means, at any time, the rate of interest, per annum,
compounded semiannually, equal to the sum of the rates of interest borne
by the Securities of each series (as specified on the face of the
Securities of each series; provided that, in the case of the Securities
with variable rates of interest, the interest rate to be used in
calculating the Composite Rate shall be the interest rate applicable to
such Securities at the beginning of the year in which the Composite Rate
is being determined and; provided, further, that, in the case of
Securities which do not bear interest, the interest rate to be used in
calculating the Composite Rate shall be a rate equal to the yield to
maturity on such Securities, calculated at the time of issuance of such
Securities) multiplied, in the case of each series of Securities, by the
percentage of the aggregate principal amount of the Securities of all
series Outstanding represented by the Outstanding Securities of such
series.
"Consolidated Funded Indebtedness" means the Funded Indebtedness of the
Issuer and its Consolidated Subsidiaries consolidated in accordance with
generally accepted accounting principles and as provided in the
definition of Funded Indebtedness.
"Consolidated Net Tangible Assets" means the Net Tangible Assets of the
Issuer and its Consolidated Subsidiaries consolidated in accordance with
generally accepted accounting principles and as provided in the
definition of Net Tangible Assets. In determining Consolidated Net
Tangible Assets, minority interests in unconsolidated subsidiaries shall
be included.
"Consolidated Subsidiaries" means subsidiaries the accounts of which are
consolidated with those of the Issuer in the preparation in accordance
with generally accepted accounting principles of its consolidated
financial statements.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which
this Indenture is dated, located in The City of New York.
"Coupon" means any interest coupon appertaining to a Security.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Issuer pursuant
to Section 2.3 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Funded Indebtedness", as used in reference to any corporation, means
all Indebtedness of such corporation which would, in accordance with
generally accepted accounting principles, be classified as funded
indebtedness, but in any event including all Indebtedness, whether
secured or unsecured, of such corporation having a final maturity (or
renewable or extendable at the option of such corporation for a period
ending) more than one year after the date as of which Funded
Indebtedness is to be determined.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by
the Issuer for that purpose in accordance with the terms hereof, and (b)
in the case of any Unregistered Security, the bearer of such Security,
or any Coupon appertaining thereto, as the case may be.
"Indebtedness" means any and all obligations of a corporation for money
borrowed which in accordance with generally accepted accounting
principles would be reflected on the balance sheet of such corporation
as a liability on the date as of which Indebtedness is to be determined.
For the purpose of computing the amount of any Funded or other
Indebtedness of any corporation, there shall be excluded all
Indebtedness of such corporation for the payment or redemption or
satisfaction of which money or securities (or evidences of such
Indebtedness, if permitted under the terms of the instrument creating
such Indebtedness) in the necessary amount shall have been deposited in
trust with the proper depositary, whether upon or prior to the maturity
or the date fixed for redemption of such Indebtedness; and, in any
instance where Indebtedness is so excluded, for the purpose of computing
the assets of such corporation there shall be excluded the money,
securities or evidences of Indebtedness deposited by such corporation in
trust for the purpose of paying or satisfying such Indebtedness.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as provided herein, as so amended or
supplemented or both, and shall include the forms and terms of
particular series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article VI) CBRL Group,
Inc. and, subject to Article IX, its successors and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer.
"Lien" has the meaning set forth in Section 3.5.
"Net Tangible Assets", as used in reference to the assets of any
corporation, means the total amount of assets of such corporation, both
real and personal (exclusive of licenses, patents, patent applications,
copyrights, trademarks, trade names, good will, experimental or
organizational expense and other like intangibles, treasury stock and
unamortized discount and expense) less the sum of:
(1) all reserves for depletion, depreciation, obsolescence and/or
amortization of its properties (other than those excluded as provided
above) as shown by the books of such corporation (other than general
contingency reserves, reserves representing mere appropriations of
surplus and reserves to the extent related to intangible assets which
have been excluded in calculating Net Tangible Assets as provided
above); and
(2) all Indebtedness and other current liabilities of such corporation
other than (a) Funded Indebtedness, (b) deferred income taxes, (c)
reserves which have been deducted pursuant to the preceding clause (1),
(d) general contingency reserves and reserves representing mere
appropriations of surplus and (e) liabilities to the extent related to
intangible assets which have been excluded in calculating Net Tangible
Assets as provided above.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or the president or any vice president and by the
treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the general
corporate counsel of the Issuer or such other legal counsel who may be
an employee of or counsel to the Issuer. Each such opinion shall
include the statements provided for in Section 11.5.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security
(or portion thereof) for which such security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that 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 5.1.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this
Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section
10.1) in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Issuer) or shall
have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying
agent); provided that if such Securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided herein, or provision satisfactory to the
Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented that
such Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Security that shall
be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 5.1.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Principal", whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and
premium, if any".
"Principal Property" has the meaning set forth in Section 3.5.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed
in Section 2.4.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Responsible Officer", when used with respect to the Trustee, means the
chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the
president, any vice president, the cashier, the secretary, the
treasurer, any trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" means a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Issuer or by one
or more subsidiaries of the Issuer, or by the Issuer and one or more
subsidiaries of the Issuer.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended
after such date, the "Trust Indenture Act of 1939" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article VI, shall
also include any successor trustee. "Trustee" shall also 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 the
Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(A).
"Vice president", when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such
series, and calculated in accordance with accepted financial practice.
ARTICLE II.
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by
or pursuant to one or more Board Resolutions (as set forth in a Board
Resolution or, to the extent established pursuant to rather than set
forth in a Board Resolution, an Officers' Certificate detailing such
establishment) or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may
have imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers
executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, 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 and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
_________________________,
as Trustee
By_______________________,
Authorized Officer
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each series shall rank equally and pari passu with all other unsecured
and unsubordinated debt of the Issuer. There shall be established in or
pursuant to one or more Board Resolutions or to the extent established
pursuant to (rather than set forth in) a Board Resolution, in an
Officers' Certificate detailing such establishment and/or established in
one or more indentures supplemental hereto:
(1) the designation of the Securities of the series (which may be part
of a series of Securities previously issued);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall
accrue, on which such interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken for the
determination of Holders to whom interest is payable and/or the method
by which such rate or rates or date or dates shall be determined;
(5) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(6) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, the price
or prices at which, and any terms and conditions upon which, Securities
of the series may be redeemed, pursuant to any sinking fund or
otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and
the price or prices at which and the period or periods within which and
any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation or the right of the Issuer to remarket Securities of the
series that have been redeemed, purchased or repaid;
(8) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in
the case of Unregistered Securities, the denominations in which
Securities of the series shall be issuable;
(9) 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;
(10) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index,
formula or method, the manner in which such amounts shall be determined;
(11) whether the Securities of the series will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as
Registered Global Securities) or Unregistered Securities (with or
without Coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or
the payment of interest thereon and, if other than as provided in
Section 2.8, the terms upon which Unregistered Securities of any series
may be exchanged for Registered Securities of such series and vice
versa;
(12) whether, under what circumstances and in what amounts the Issuer
will pay additional amounts on the Securities of the series held by a
person who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Issuer
will have the option to redeem such Securities rather than pay such
additional amounts;
(13) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form and
terms of such certificates, documents or conditions;
(14) whether warrants shall be attached to such Securities and the terms
of any such warrants;
(15) whether such Securities are exchangeable or convertible into new
Securities of a different series and/or shares of stock of the Issuer
and/or other securities and the terms of such exchange or conversion and
the terms, rights and preferences of such Securities or stock;
(16) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series;
(17) any other events of default or covenants with respect to the
Securities of such series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officers' Certificate
referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same
time and may be issued from time to time, consistent with the terms of
this Indenture, if so provided by or pursuant to such Board Resolution,
such Officers' Certificate or in any such indenture supplemental hereto
and, unless otherwise provided, a series may be reopened for issuances
of additional Securities of such series.
If any of the foregoing terms are not available at the time such Board
Resolutions are adopted, or such Officers' Certificate or any
supplemental indenture is executed, such Board Resolutions, Officers'
Certificate or supplemental indenture may reference the document or
documents to be created in which such terms will be set forth prior to
the issuance of such Securities.
SECTION 2.4. Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below
in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the order of the Issuer (contained in
the Issuer Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities
of such series and Coupons, if any, appertaining thereto shall be
determined by or pursuant to such Issuer Order and procedures. If
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be
promptly confirmed in writing. 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 6.1) shall be fully protected in relying upon:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to
be delivered to the Issuer;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities and Coupons, if
any, were established;
(3) an Officers' Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms
and terms of the Securities and Coupons, if any, have been established
pursuant to Sections 2.1 and 2.3 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably request; and
(4) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if any,
have been duly authorized and established in conformity with the
provisions of this Indenture;
(b) the authentication and delivery of such Securities and Coupons, if
any, by the Trustee are authorized under the provisions of this
Indenture;
(c) such Securities and Coupons, if any, when authenticated and
delivered by the Trustee and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Issuer; and
(d) all laws and requirements in respect of the execution and delivery
by the Issuer of the Securities and Coupons, if any, have been complied
with,
and covering such other matters as the Trustee may reasonably request.
Notwithstanding the provisions of Section 2.3 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 Board Resolution
and/or Officers' Certificate otherwise required pursuant to Section 2.3
or the Issuer 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 time of authentication upon original issuance of the first
Security of such series to be issued. After the original issuance of
the first Security of such series to be issued, any separate request by
the Issuer that the Trustee authenticate Securities of such series for
original issuance will be deemed to be a certification by the Issuer
that it is in compliance with all conditions precedent provided for in
this Indenture relating to the authentication and delivery of such
Securities.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the
Issuer or if the Trustee in good faith by its board of directors or
board of trustees, executive committee, or a trust committee of
directors or trustees or Responsible Officers shall determine that such
action would expose the Trustee to personal liability to existing
Holders or would affect the Trustee's own rights, duties or immunities
under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more
Registered Global Securities, then the Issuer shall execute and the
Trustee shall, in accordance with this Section and the Issuer Order with
respect to such series, authenticate and deliver one or more Registered
Global Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the
Securities of such series issued and not yet canceled, (ii) shall be
registered in the name of the Depositary for such Registered Global
Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend substantially to
the following effect: "Unless and until it is exchanged in whole or in
part for Securities in definitive registered form, this security may not
be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary".
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf
of the Issuer by the chairman of its Board of Directors or any vice
chairman of its Board of Directors or its president or any vice
president or its treasurer, under its corporate seal (except in the case
of Coupons) which may, but need not, be attested. Such signatures may
be the manual or facsimile signatures of the present or any future such
officers. The seal of the Issuer may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced
on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so
signed appertains) shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security or Coupon nevertheless may
be authenticated and delivered or disposed of as though the person who
signed such Security or Coupon had not ceased to be such officer of the
Issuer; and any Security or Coupon may be signed on behalf of the Issuer
by such persons as, at the actual date of the execution of such Security
or Coupon, shall be the proper officers of the Issuer, although at the
date of the execution and delivery of this Indenture any such person was
not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the
form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose.
No Coupon shall be entitled to the benefits of this Indenture or shall
be valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains shall
have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer
shall be conclusive evidence that the Security so authenticated has been
duly authenticated and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
SECTION 27. Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities
or Unregistered Securities in denominations established as contemplated
by Section 2.3 or, with respect to the Registered Securities of any
series, if not so established, in denominations of $1,000 and any
integral multiple thereof. If denominations of Unregistered Securities
of any series are not so established, such Securities shall be issuable
in denominations of $1,000 and $5,000. The Securities of each series
shall be numbered, lettered or otherwise distinguished in such manner or
in accordance with such plan as the officers of the Issuer executing the
same may determine with the approval of the Trustee, as evidenced by the
execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution
or resolutions of the Board of Directors of the Issuer referred to in
Section 2.3. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
The person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such
series shall be entitled to receive the interest, if any, payable on
such interest payment date notwithstanding any transfer or exchange of
such Registered Security subsequent to the record date and prior to such
interest payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest payment date
for such series, in which case such defaulted interest shall be paid to
the persons in whose names Outstanding Registered Securities for such
series are registered at the close of business on a subsequent record
date (which shall be not less than five Business Days prior to the date
of payment of such defaulted interest) established by notice given by
mail by or on behalf of the Issuer to the Holders of Registered
Securities not less than 15 days preceding such subsequent record date.
The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of
any series shall mean the date specified as such in the terms of the
Registered Securities of such series established as contemplated by
Section 2.3, or, if no such date is so established, if such interest
payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is
the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register or registers in
which, subject to such reasonable regulations as it may prescribe, it
will provide for the registration of Securities of such series and the
registration of transfer of Registered Securities of such series. Such
register shall be in written form in the English language or in any
other form capable of being converted into such form within a reasonable
time. At all reasonable times such register or registers shall be open
for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for
the purpose as provided in Section 3.2, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the
same series, maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary Unregistered
Securities) and Coupons (except for Coupons attached to any temporary
Unregistered Global Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such
series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at
the agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any series may be exchanged for
Registered Securities of such series having authorized denominations and
an equal aggregate principal amount, upon surrender of such Unregistered
Securities to be exchanged at the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.2, with, in the
case of Unregistered Securities that have Coupons attached, all
unmatured Coupons and all matured Coupons in default thereto
appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate and
original issue date are issued in more than one authorized denomination,
except as otherwise specified pursuant to Section 2.3, such Unregistered
Securities may be exchanged for Unregistered Securities of such series
having authorized denominations and an equal aggregate principal amount,
upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 or as specified pursuant to Section 2.3,
with, in the case of Unregistered Securities that have Coupons attached,
all unmatured Coupons and all matured Coupons in default thereto
appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. Unless otherwise specified pursuant to
Section 2.3, Registered Securities of any series may not be exchanged
for Unregistered Securities of such series. Whenever any Securities are
so surrendered for exchange, the Issuer shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive. All Securities and Coupons
surrendered upon any exchange or transfer provided for in this Indenture
shall be promptly canceled and disposed of by the Trustee and the
Trustee will deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or
the Trustee) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by the Holder or his attorney duly
authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding
the first mailing of notice of redemption of Securities of such series
to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security
to be redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary
or by a nominee of such Depositary to such Depositary or another nominee
of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the
Issuer that it is unwilling or unable to continue as Depositary for such
Registered Securities or if at any time the Depositary for such
Registered Securities shall no longer be eligible under Section 2.4, the
Issuer shall appoint a successor Depositary with respect to such
Registered Securities. If a successor Depositary for such Registered
Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the
Issuer's election pursuant to Section 2.3 that such Registered
Securities be represented by one or more Registered Global Securities
shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication
and delivery of definitive Securities of such series, will authenticate
and deliver, Securities of such series in definitive registered form
without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global
Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a
Registered Global Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of an Officers' Certificate for
the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without Coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the
Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or
Securities.
If an Event of Default occurs and is continuing with respect to
Registered Securities of any series issued in the form of one or more
Registered Global Securities, upon written notice from the Depository,
the Issuer will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities
of such series, will authenticate and deliver, Securities of such series
in definitive registered forms without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal
amount of the Registered Global Security or Securities, representing
such Registered Securities, in exchange for such Registered Global
Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary
for such Registered Global Security may surrender such Registered Global
Security in exchange in whole or in part for Securities of the same
series in definitive registered form on such terms as are acceptable to
the Issuer and such Depositary. Thereupon, the Issuer shall execute, and
the Trustee shall authenticate and deliver, without service charge:
(i) to the Person specified by such Depositary a new Registered Security
or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Registered
Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations,
such Registered Global Security shall be canceled by the Trustee or an
agent of the Issuer or the Trustee. Securities in definitive registered
form without Coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the
Issuer or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such
Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent
of the Issuer or the Trustee (any of which, other than the Issuer, shall
rely on an Officers' Certificate and an Opinion of Counsel) shall be
required to exchange any Unregistered Security for a Registered Security
if such exchange would result in adverse Federal income tax consequences
to the Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for Federal income tax purposes, the
interest payable on the Unregistered Securities) under then applicable
United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security or any Coupon appertaining
to any Security shall become mutilated, defaced or be destroyed, lost or
stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and
deliver a new Security of the same series, maturity date, interest rate
and original issue date, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen with Coupons corresponding to the
Coupons appertaining to the Securities so mutilated, defaced, destroyed,
lost or stolen, or in exchange or substitution for the Security to which
such mutilated, defaced, destroyed, lost or stolen Coupon appertained,
with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee
such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the
ownership thereof and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer 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 or its
agent) connected therewith. In case any Security or Coupon which has
matured or is about to mature or has been called for redemption in full
shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize
the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or
Coupon), if the applicant for such payment shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent
of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the
ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security
or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable by anyone
and shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of such
series duly authenticated and delivered hereunder. All Securities and
Coupons shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall preclude any
and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities
without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities and Coupons surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any payment in respect of
a sinking or analogous fund, if surrendered to the Issuer or any agent
of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or any agent of the Trustee for cancellation
or, if surrendered to the Trustee, shall be canceled by it (unless such
Securities are to be remarketed pursuant to the terms thereof); and no
Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The
Trustee shall dispose of canceled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer shall
acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented
by such Securities or Coupons unless and until the same are delivered to
the Trustee or any agent of the Trustee or the agent of the Trustee for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the
Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in
each case in form satisfactory to the Trustee). Temporary Securities of
any series shall be issuable as Registered Securities without Coupons,
or as Unregistered Securities with or without Coupons attached thereto,
of any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions
and variations as may be appropriate for temporary Registered
Securities, all as may be determined by the Issuer with the concurrence
of the Trustee as evidenced by the execution and authentication thereof.
Temporary Securities may contain such references to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be
executed by the Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect,
as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Registered Securities of such series may be
surrendered in exchange therefor without charge at each office or agency
to be maintained by the Issuer for that purpose pursuant to Section 3.2
and, in the case of Unregistered Securities, at any agency maintained by
the Issuer for such purpose as specified pursuant to Section 2.3, and
the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount
of definitive Securities of the same series having authorized
denominations and, in the case of Unregistered Securities, having
attached thereto any appropriate Coupons. Until so exchanged, the
temporary Securities of any series shall be entitled to the same
benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.3. The provisions of
this Section are subject to any restrictions or limitations on the issue
and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.3.
ARTICLE III.
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly
and punctually pay or cause to be paid the principal of, and interest
on, each of the Securities of such series (together with any additional
amounts payable pursuant to the terms of such Securities) at the place
or places, at the respective times and in the manner provided in such
Securities and in the Coupons, if any, appertaining thereto and in this
Indenture. The interest on Securities with Coupons attached (together
with any additional amounts payable pursuant to the terms of such
Securities) shall be payable only upon presentation and surrender of the
several Coupons for such interest installments as are evidenced thereby
as they severally mature. If any temporary Unregistered Security
provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of
such Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon presentation
and surrender thereof, and, as to the other installments of interest, if
any, only upon presentation of such Securities for notation thereon of
the payment of such interest, in each case subject to any restrictions
that may be established pursuant to Section 2.3. The interest on
Registered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and at the option of the
Issuer may be paid by wire transfer (to Holders of $10,000,000 or more
of Registered Securities) or by mailing checks for such interest payable
to or upon the written order of such Holders at their last addresses at
they appear on the registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. The Issuer will maintain in The
City of New York an agency where the Registered Securities of each
series may be presented for payment, an agency where the Securities of
each series may be presented for exchange as provided in this Indenture
and, if applicable, pursuant to Section 2.3, an agency where the
Registered Securities of each series may be presented for registration
of transfer as provided in this Indenture.
The Issuer will maintain in The City of New York, an agency where
notices and demands to or upon the Issuer in respect of the Securities
of any series, the Coupons appertaining thereto or this Indenture may be
served.
The Issuer will give to the Trustee written notice of the location of
each such agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be
located in The City of New York, or shall fail to give such notice of
the location or of any change in the location of any of the above
agencies, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
agencies where the Securities of a series and any Coupons appertaining
thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.3 and where the Registered Securities of that
series may be presented for registration of transfer as provided in this
Indenture, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient; provided,
however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain the agencies provided
for in this Section. The Issuer will give to the Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities of such series) in trust for the benefit of
the Holders of the Securities of such series, or Coupons appertaining
thereto, if any, or of the Trustee;
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable; and
(c) that at any time during the continuance of any such failure, upon
the written request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, and
(unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the
Securities of such series or the Coupons appertaining thereto a sum
sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such
action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the Issuer
or any paying agent hereunder, as required by this Section, such sums to
be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.4 Written Statement to Trustee. The Issuer will deliver to
the Trustee on or before April 15 in each year (beginning in 1999) a
written statement, signed by two of its officers (which need not comply
with Section 11.5), stating that in the course of the performance by the
signers of their duties as officers of the Issuer they would normally
have knowledge of any default by the Issuer in the performance or
fulfillment of any covenant, agreement or condition contained in this
Indenture, stating whether or not they have knowledge of any such
default and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
SECTION 3.5 Limitation on Liens. The following provisions shall apply to
the Securities of each series unless specifically otherwise provided in
a Board Resolution, Officers' Certificate or indenture supplemental
hereto as provided pursuant to Section 2.3.
(a) The Issuer will not itself, and will not permit any Consolidated
Subsidiary to, issue, assume or guarantee any Indebtedness, if such
Indebtedness is secured by mortgage, pledge, security interest or other
lien or encumbrance (any mortgage, pledge, security interest or other
lien or encumbrance being hereinafter in this Section 3.5 referred to as
a "Lien") upon or with respect to any Principal Property, as defined
below, or on the capital stock of any Consolidated Subsidiary that owns
Principal Property (unless all obligations and indebtedness thereby
secured are held by the Issuer or a Consolidated Subsidiary) without
making effective provision whereby the Securities shall be secured by
such Lien equally and ratably with any and all other obligations and
indebtedness thereby secured; provided, however, that the foregoing
restrictions shall not be applicable to:
(i) Any Lien existing on any Principal Property of the Issuer or any
Consolidated Subsidiary at the date of this Indenture;
(ii) Any Lien created by a Consolidated Subsidiary in favor of the
Issuer or any wholly-owned Consolidated Subsidiary securing Indebtedness
of such Consolidated Subsidiary to the Issuer or to a wholly-owned
Consolidated Subsidiary;
(iii) Any Lien existing on any asset of any corporation at the time such
corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(iv) Any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Issuer or a
Consolidated Subsidiary and not created in contemplation of such event;
(v) Any Lien on any asset existing at the time of acquisition thereof by
the Issuer or any Consolidated Subsidiary and not created in
contemplation of such event;
(vi) Any Lien on any asset or any improvement thereof securing
Indebtedness incurred or assumed for the purpose of financing all or any
part of the cost of acquiring such asset or the making of any
improvement thereof; provided that such Lien attaches to such asset
concurrently with or within 180 days after the acquisition thereof or
the making of such improvement; and provided, further, that the
principal amount of the Indebtedness secured by any such Lien, together
with all other Indebtedness secured by a Lien on such property, shall
not exceed the purchase price of such property or the cost of such
improvement;
(vii) Any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of
clauses (i) through (vi) above; provided that such Indebtedness is not
increased and is not secured by any additional assets; and
(viii) Liens arising in the ordinary course of business of the Issuer or
any Consolidated Subsidiary which (A) do not secure Indebtedness and (B)
do not in the aggregate materially detract from the value of the assets
of the Issuer or such Consolidated Subsidiary, as the case may be, or
materially impair the use thereof, in the operation of the Issuer's or
such Consolidated Subsidiary's business.
(i) Notwithstanding the provisions of subsection (a) of this Section
3.5, the Issuer or any Consolidated Subsidiary may issue, assume or
guarantee Indebtedness secured by a Lien which would otherwise be
subject to the foregoing restrictions in an aggregate amount which,
together with all other such Indebtedness of the Issuer and its
Consolidated Subsidiaries and the Attributable Debt in respect of Sale
and Lease-Back Transactions (as defined in Section 3.6) existing at such
time (other than Sale and Lease-Back Transactions not subject to the
limitation contained in Section 3.6), does not at the time exceed 10% of
Consolidated Net Tangible Assets. The term "Attributable Debt" as used
in this paragraph shall mean, as of any particular time, the present
value, discounted at the Composite Rate, of the obligation of a lessee
for rental payments during the remaining term of any lease (including
any period for which such lease has been extended or may, at the option
of the lessor, be extended).
(ii) For the purposes of this Section 3.5, the term "Principal Property"
means (i) a parcel of improved or unimproved real estate or other
physical facility or depreciable asset of the Issuer or a Subsidiary,
the net book value of which on the date of determination exceeds 2% of
the Consolidated Net Tangible Assets and (ii) any group of parcels of
real estate, other physical facilities, and/or depreciable assets of the
Issuer and/or its Subsidiaries, the net book value of which, when sold
in one or a series of related Sale and Lease-Back Transactions or
securing Indebtedness issued in respect of such Principal Properties, on
the date of determination exceeds 2% of the Consolidated Net Tangible
Assets. For purposes of the foregoing, "related Sale and Lease-Back
Transactions" refers to any two or more such contemporaneous
transactions which are on substantially similar terms with substantially
the same parties.
SECTION 3.6 Limitation on Sale and Lease-Back. The Issuer will not, nor
will it permit any Consolidated Subsidiary to, enter into any
arrangement with any Person (other than the Issuer) providing for the
leasing by the Issuer or a Consolidated Subsidiary of any Principal
Property (except for temporary leases for a term of not more than three
years), which property has been or is to be sold or transferred by the
Issuer or such Consolidated Subsidiary to such Person (herein referred
to as a "Sale and Lease-Back Transaction"), unless (a) the net proceeds
to the Issuer or such Consolidated Subsidiary from such sale or transfer
equal or exceed the fair value (as determined by the Board of Directors)
of the property so leased, (b) the Issuer or such Consolidated
Subsidiary would be entitled to incur Indebtedness secured by a Lien on
the property to be leased pursuant to Section 3.5, or (c) the Issuer
shall, and in any such case the Issuer covenants that it will, apply an
amount equal to the fair value (as determined by the Board of Directors)
of the property so leased to the retirement (other than any mandatory
retirement), within 90 days of the effective date of any such Sale and
Lease-Back Transaction, of Funded Indebtedness of the Issuer.
ARTICLE IV.
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer covenants and agrees that it
will furnish or cause to be furnished to the Trustee a list in such form
as the Trustee may reasonably require of the names and addresses of the
Holders of the Registered Securities of each series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Registered Securities, as hereinabove
specified, as of such record date and on dates to be determined pursuant
to Section 2.3 for non-interest bearing Registered Securities in each
year; and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Issuer of any such request, such list to be as
of a date not more than 15 days prior to the time such information is
furnished;
provided that if and so long as the Trustee shall be the Security
registrar for such series and all of the Securities of any series are
Registered Securities, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the
Holders of each series of Registered Securities (i) contained in the
most recent list furnished to it as provided in Section 4.1 and (ii)
received by it in the capacity of Security registrar for such series, if
so acting. The Trustee may destroy any list furnished to it as provided
in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred to
as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular series (in
which case the applicants must all hold Securities of such series) or
with holders of all Securities respect to their rights under this
Indenture or under such Securities and such application is accompanied
by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election,
either:
(i) afford to such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a)
of this Section; or
(ii) inform such applicants as to the approximate number of Holders of
Registered Securities of such series or of all Registered Securities, as
the case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the provisions
of subsection (a) of this Section, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such series or all Holders of
Registered Securities, as the case may be, whose name and address appear
in the information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to
be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such
tender, the Trustee shall mail to such applicants and file with the
Commission together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of
Registered Securities of such series or of all Registered Securities, as
the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections
so sustained have been met, and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Securityholders
with reasonable promptness after the entry of such order and the renewal
of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities and Coupons, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities
in accordance with the provisions of subsection (b) of this Section,
regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Issuer may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, or if the
Issuer is not required to file information, documents or reports
pursuant to either of such Sections, then to file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, or in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants provided for
in this Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities, in the manner and
to the extent required by Sections 6.6 and 11.4, within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from
time to time by the Commission.
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default", with respect to Securities of any
series wherever used herein, means each one of the following events
which shall have occurred and be continuing (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):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any of
the Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or
otherwise; or
(c) failure on the part of the Issuer duly to observe or perform any
other covenant or agreement on the part of the Issuer in respect of the
Securities of such series (other than a covenant or warranty in respect
of the Securities of such series a default in the performance or breach
of which is elsewhere in this Section specifically dealt with) or
contained in this Indenture, 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 Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of all series affected thereby, a written notice
specifying such failure or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Issuer or any Consolidated Subsidiary
in an involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or any Restricted Subsidiary or for any
substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(e) the Issuer or any Consolidated Subsidiary shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer
or any Consolidated Subsidiary or for any substantial part of its
property, or make any general assignment for the benefit of creditors;
or
[(f) default (i) in the payment of any principal on any Indebtedness of
the Issuer or any Subsidiary in an aggregate principal amount in excess
of the greater of (a) $____ million or (b) ___% of Consolidated Net
Tangible Assets when due at its final maturity after giving effect to
any applicable grace period and the holder thereof shall have taken
affirmative action to enforce the payment thereof, or (ii) in the
performance of any term or provision of any Indebtedness of the Issuer
or any Subsidiary in an aggregate principal amount in excess of the
greater of (a) $____ million or (b) ___% of Consolidated Net Tangible
Assets that results in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise become due and
payable, unless, in the case of either clause (i) or (ii) above, (x)
such acceleration or action to enforce payment, as the case may be, has
been rescinded or annulled, (y) such Indebtedness has been discharged or
(z) a sum sufficient to discharge in full such Indebtedness has been
deposited in trust by or on behalf of the Issuer, in each case, within a
period of 10 days after there has been given, by registered or certified
mail, to the Issuer by the Trustee or to the Issuer and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities of all series affected thereby, a written notice specifying
such default or defaults and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the provisions
of Section 6.1 and 6.2, 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 Issuer, from any
Holder, from the holder of any such Indebtedness or from the trustee
under any such mortgage, indenture or other instrument; or]
(g) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of
Security for such series.
If an Event of Default described in clauses (a), (b), (c), (f) or (g)
(if the Event of Default under clause (c), (f) or (g), as the case may
be, is with respect to less than all series of Securities then
Outstanding) occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Securities of such series shall
have already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Securities of
each such affected series then Outstanding hereunder (each such series
voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire
principal (or, if the Securities of such affected series are Original
Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of such
series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in clause
(c), (f), (g) (if the Event of Default under clause (c), (f) or (g), as
the case may be, is with respect to all series of Securities then
Outstanding), (d) or (e) occurs and is continuing, then, and in each and
every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in writing to
the Issuer (and to the Trustee if given by Securityholders), may declare
the entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the
terms thereof) of all the Securities then Outstanding, and interest
accrued thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities are Original
Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of
all the Securities, as the case may be) shall have been so declared due
and payable, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as hereinafter provided,
the Issuer shall pay or shall deposit with the Trustee a sum sufficient
to pay all matured installments of interest upon all the Securities of
such series (or of all the Securities, as the case may be) and the
principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise
than by acceleration (with interest upon such principal) and, to the
extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation
to the Trustee and each predecessor Trustee, its agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of securities which shall have
become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then and in every such case the Holders of
a majority in aggregate principal amount of all the Securities of such
series, each series voting as a separate class (or of all the
Securities, as the case may be, voting as a single class), then
Outstanding, by written notice to the Issuer and to the Trustee, may
waive all defaults with respect to each such series (or with respect to
all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or
shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from
and after such declaration, unless such declaration has been rescinded
and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such
portion of the principal thereof as shall be due and payable as a result
of such acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such acceleration,
together with interest, if any, thereon and all other amounts owing
thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any instalment of interest on any of the Securities of
any series when such interest shall have become due and payable, and
such default shall have continued for a period of 30 days or (b) in case
default shall be made in the payment of all or any part of the principal
of any of the Securities of any series when the same shall have become
due and payable, whether upon maturity of the Securities of such series
or upon any redemption or by declaration or otherwise, then upon demand
of the Trustee, the Issuer will pay to the Trustee for the benefit of
the Holders of the Securities of such series the whole amount that then
shall have become due and payable on all Securities of such series, and
such Coupons, for principal or interest, as the case may be (with
interest to the date of such payment upon the overdue principal and, to
the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and any expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee except as a result of
its negligence or bad faith.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid,
and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the
Issuer or other obligor upon such Securities and collect in the manner
provided by law out of the property of the Issuer or other obligor upon
such Securities, wherever situated, the moneys adjudged or decreed to be
payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Title 11 of the United States
Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Issuer
or its property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether
the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this
Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) owing and unpaid in respect of
the Securities of any series, and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee
and each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of
a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to
pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.7 except as a result of
Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Securityholder in any such proceeding except, as aforesaid,
to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to
such Securities, may be enforced by the Trustee without the possession
of any of the Securities of such series or Coupons appertaining to such
Securities or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee
and their respective agents and attorneys, shall be for the ratable
benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which
the Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Securities or Coupons appertaining to such
Securities in respect to which such action was taken, and it shall not
be necessary to make any Holders of such Securities or Coupons
appertaining to such Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be
applied in the following order at the date or dates fixed by the Trustee
and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or
issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially
paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series
in respect of which moneys have been collected, including reasonable
compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.7 except as a result of Trustee's
negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of
such series in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest
at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing
and unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference or
priority of principal over interest or Yield to maturity, or of interest
or Yield to Maturity over principal, or of any installment of interest
over any other installment of interest, or of any Security of such
series over any other Security of such series, ratably to the aggregate
of such principal and accrued and unpaid interest or Yield to Maturity;
and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights,
either at law or in equity or in bankruptcy or otherwise, whether for
the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee,
then and in every such case the Issuer and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had been
taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have
any right by virtue or by availing of any provision of this Indenture to
institute any action or proceeding at law or in equity or in bankruptcy
or otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and
of the continuance thereof, as hereinbefore provided, and unless also
the Holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written
request upon the Trustee to institute such action or proceedings in its
own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity
shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given
to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the taker and Holder of
every Security or Coupon with every other taker and Holder and the
Trustee, that no one or more Holders of Securities of any series or
Coupons appertaining to such Securities shall have any right in any
manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such
Holder of Securities or Coupons appertaining to such Securities, or to
obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of
all Holders of Securities of the applicable series and Coupons
appertaining to such Securities. For the protection and enforcement of
the provisions of this Section, each and every Securityholder and the
Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such
Security or Coupon on or after the respective due dates expressed in
such Security or Coupon, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of
Securities or Coupons 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.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such
right or power or shall be construed to be a waiver of any such Event of
Default or an acquiescence therein; and, subject to Section 5.6, every
power and remedy given by this Indenture or by law to the Trustee or to
the Holders of Securities or Coupons may be exercised from time to time,
and as often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders of a majority
in aggregate principal amount of the Securities of each series affected
(with each series voting as a separate class) at the time Outstanding
shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such
direction shall not be otherwise than in accordance with law and the
provisions of this Indenture; and provided, further, that 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 forbearances specified in or pursuant
to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the
giving of said direction, it being understood that the Trustee shall
have no duty to ascertain whether or not such actions or forbearances
are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the acceleration of the
maturity of any Securities of any series as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of
all series at the time Outstanding with respect to which an Event of
Default shall have occurred and be continuing voting as a single class
may on behalf of the Holders of all the Securities of such series waive
any past default or Event of Default described in Section 5.1 and its
consequences, except a default in respect of a covenant or provision
hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the
Issuer, the Trustee and the Holders of all such Securities shall be
restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
SECTION 5.11 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder
or group of Securityholders of any series holding in the aggregate more
than 10% in aggregate principal amount of the Securities of such series,
or, in the case of any suit relating to or arising under clause (c), (f)
or (g) of Section 5.1 (if the suit relates to Securities of more than
one but less than all series), 10% in aggregate principal amount of
Securities then Outstanding and affected thereby, or, in the case of any
suit relating to or arising under clause (c), (f), (g) (if the suit
under clause (c), (f) or (g) relates to all the Securities then
Outstanding), (d) or (e) of Section 5.1, 10% in aggregate principal
amount of all Securities then Outstanding, or to any suit instituted by
any Securityholder for the enforcement of the payment of the principal
of or interest on any Security on or after the due date expressed in
such Security or any date fixed for redemption.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(1) If an Event of Default has occurred and is continuing with respect
to the Securities of any series, the Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of
care and skill in its exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default with respect to
the Securities of any series:
(1) the Trustee need perform only those duties that are specifically set
forth in 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 the document against the Trustee; and
(2) in the absence of bad faith on its part, 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. However, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(3) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received
by it pursuant to Section 5.9.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section
6.1.
(5) No provision of this Indenture shall require the Trustee to extend
or risk its own funds or otherwise incur any financial liability unless
it receives indemnity satisfactory to it against any loss, liability or
expense.
(6) 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 in writing with the Issuer.
SECTION 6.2 Rights of Trustee.
(1) The Trustee may rely, and shall be protected in relying, upon on any
document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(3) Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which
it believes to be authorized or within its rights or powers.
(4) Before the Trustee acts or refrains from acting the Trustee may
consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel.
(5) 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 indemnity reasonable to it
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(6) 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.
(7) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, Officer's Certificate, or other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders or not less
than a majority in aggregate principal amount of the Securities then
Outstanding; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be
paid by the Issuer or, if advanced by the Trustee, shall be repaid by
the Issuer upon demand.
(8) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(9) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on
the part of the Issuer, except as otherwise set forth herein, but the
Trustee may require of the Issuer full information and advice as to the
performance of the covenants, conditions and agreements contained herein
and shall be entitled in connection herewith to examine the books,
records and premises of the Issuer.
(10) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall
not be answerable for other than its negligence or willful default.
(11) except for (i) a default under Section 5.1(a) or (b) hereof or (ii)
any other event of which the Trustee ha "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall
not be deemed to have notice of any default or event unless specifically
notified in writing of such event by the Issuer or the Holders of not
less than 25% in aggregate principal amount of the Securities
Outstanding; as used herein, the term "actual knowledge" means the
actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and
may otherwise deal with the Issuer or its affiliates with the same
rights it would have if it were not Trustee. Any paying agent,
registrar or co-registrar may do the same with like rights. However,
the Trustee must comply with Sections 6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it
shall not be accountable for the Issuer's use of the proceeds from the
Securities, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities Act of
1933, as amended, or in the Indenture or the Securities (other than its
certificate of authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is continuing
with respect to any Securities of any Series and if the Trustee has
actual knowledge of such default, the Trustee shall give to each
Securityholder of such series notice of the default within 90 days after
such default occurs. Except in the case of a default described in
Section 5.1(a) or (b), the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Securityholders of
such series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each
July 1 beginning with the July 1 following the date of this Indenture,
the Trustee shall mail to each Securityholder of any Series and each
other person specified in Section 313(c) of the Trust Indenture Act of
1939 a brief report dated as of such July 1 that complies with Section
313(a) of the Trust Indenture Act of 1939 to the extent required
thereby. The Trustee also shall comply with Section 313(b) of the Trust
Indenture Act of 1939.
A copy of each report at the time of its mailing to Securityholders of
any series shall be filed with the Commission and each securities
exchange on which the Securities of any series are listed. The Issuer
agrees to notify the Trustee whenever the Securities of any series
become listed on any securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Issuer agrees:
(1) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such compensation as shall be agreed to in writing between
the Issuer and the Trustee 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) 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, advances and disbursements of
its agents and counsel), except to the extent any such expense,
disbursement or advance may be attributable to its negligence or willful
misconduct; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except
to the extent that any such loss, liability or expense may be
attributable to its negligence or willful misconduct.
As security for the performance of the obligations of the Issuer in this
Section 6.7, the Trustee shall have a lien prior to the Securities on
all money or property held or collected by the Trustee, except that held
in trust to pay the principal of or interest, if any, on particular
Securities.
"Trustee" for purpose of this Section 6.7 includes any predecessor
trustee, provided that the negligence or bad faith of any Trustee shall
not be attributable to any other Trustee.
The Issuer's payment obligations pursuant to this Section 6.7 shall
constitute additional indebtedness hereunder and shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a default specified in Sections 5.1(d) and 5.1(e), such
expenses (including reasonable fees and expenses of its counsel) are
intended to constitute expenses of administration under bankruptcy law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any time
with respect to Securities of one or more series by so notifying the
Issuer; provided, however, no such resignation shall be effective until
a successor Trustee has accepted its appointment pursuant to this
Section 6.8. The Holders of a majority in aggregate principal amount of
the Outstanding Securities of any series may remove the Trustee with
respect to such series at the time outstanding by so notifying the
Trustee and the Issuer. The Issuer shall remove the Trustee if:
(a) the Trustee fails to comply with Section 6.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one
or more series, the Issuer shall promptly appoint, by resolution of its
Board of Directors, a successor Trustee with respect to the Securities
of such Series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties
of the Trustee under this Indenture with respect to the Securities of
such series. The successor Trustee shall mail a notice of its
succession to Securityholders so affected. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer
or the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act
shall be the successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of Section 310(a)(1) of the Trust
Indenture Act of 1939. The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Neither the Issuer nor any person
directly or indirectly controlling, controlled by or under common
control with the Issuer shall serve as Trustee hereunder. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act of 1939.
SECTION 6.11 Preferential Collection of Claims Against Issuer. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act of
1939, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act of 1939. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act of
1939 to the extent indicated therein.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders 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. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in
the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer
of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged
to him the execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other such officer. Where
such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute
sufficient proof of the authority of the person executing the same. The
fact of the holding by any Holder of an Unregistered Security of any
series, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by
a certificate executed by any trust company, bank, banker or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a
Security of such series bearing a specified identifying number was
deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate.
Any such certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified therein. The
holding by the person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to continue
for a period of one year from the date of such certificate unless at the
time of any determination of such holding (1) another certificate
bearing a later date issued in respect of the same Securities shall be
produced, or (2) the Security of such series specified in such
certificate shall be produced by some other person, or (3) the Security
of such series specified in such certificate shall have ceased to be
Outstanding. Subject to Sections 6.1 and 6.2, the fact and date of the
execution of any such instrument and the amount and numbers of
Securities of any series held by the person so executing such instrument
and the amount and numbers of any Security or Securities for such series
may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in
any other manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate
of the Security registrar.
SECTION 7.3 Holders to Be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the person in
whose name any Security shall be registered upon the Security register
for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment
of or on account of the principal of and, subject to the provisions of
this Indenture, interest on such Security and for all other purposes;
and neither the Issuer nor the Trustee nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. The
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the Holder of any Unregistered Security and the Holder of any Coupon as
the absolute owner of such Unregistered Security or Coupon (whether or
not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all
other purposes and neither the Issuer, the Trustee, nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable upon any such
Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have concurred in
any direction, consent or waiver under this Indenture, Securities which
are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall
be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent
or waiver only Securities which the Trustee knows are 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 to so act with respect
to such Securities and that the pledgee is not the Issuer or any other
obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control
with the Issuer or any other obligor on the Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection
in respect of any decision made by the Trustee in accordance with such
advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for
the account of any of the above-described persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set
forth and of the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the securities of any or all series, as
the case may be, specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by
the evidence to be included among the serial numbers of the Securities
the Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding
as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid, any such action taken by the Holder of
any Security shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders
of the percentage in aggregate principal amount of the Securities of any
or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities affected by
such action.
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors
(which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act of 1939 as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article IX;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee
shall consider to be for the protection of the Holders of Securities or
Coupons, and to make the occurrence, or the occurrence and continuance,
of a default in any such additional covenants, restrictions, conditions
or provisions an Event of Default permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set
forth; provided that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may
provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such an Event of Default
or may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event
of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Issuer
may deem necessary or desirable; provided that no such action shall
adversely affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form of terms or Securities of any series or of the
Coupons appertaining to such Securities as permitted by Sections 2.1 and
2.3; and
(f) 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 6.8.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge
of any property thereunder, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the
provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article VII) of the Holders
of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when
authorized by a resolution of its Board of Directors (which resolution
may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act
of 1939 as in force at the date of execution thereof) for the purpose of
adding any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of
each such series or of the Coupons appertaining to such Securities;
provided that no such supplemental indenture shall (a) extend the final
maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to
Section 5.1 or the amount thereof provable in bankruptcy pursuant to
Section 5.2, or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, in each case without the
consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the
Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so affected.
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 Holders of Securities of such series, or
of Coupons appertaining to such Securities, with respect to such
covenant or provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series or of
the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of
its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of
the Issuer authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer in the execution of
such supplemental indenture unless such supplemental indenture affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall
not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof (i) to the Holders of then Outstanding
Registered Securities of each series affected thereby, by mailing a
notice thereof by first-class mail to such Holders at their addresses as
they shall appear on the Security register, (ii) if any Unregistered
Securities of a series affected thereby are then Outstanding, to the
Holders thereof who have filed their names and addresses with the
Trustee, by mailing a notice thereof by first-class mail to such Holders
at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then
Outstanding, to all Holders thereof, by publication of a notice thereof
at least once in an Authorized Newspaper in the Borough of Manhattan,
The City of New York, and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure
of the Issuer to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer
and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to
be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article complies with
the applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions
of this Article may bear a notation in form approved by the Trustee for
such series as to any matter provided for by such supplemental indenture
or as to any action taken by Securityholders. If the Issuer or the
Trustee shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Board of Directors, to
any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Issuer, authenticated by the Trustee
and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. The Issuer
covenants that it will not merge or consolidate with any other person or
sell or convey (including by way of lease) all or substantially all of
its assets to any Person, unless (i) either the Issuer shall be the
continuing corporation, or the successor corporation or the Person which
acquires by sale or conveyance substantially all the assets of the
Issuer (if other than the Issuer) shall be a corporation or entity
organized under the laws of the United States of America or any state
thereof and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities and Coupons, according
to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Issuer, by supplemental indenture satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation or
entity, and (ii) the Issuer, such Person or such successor corporation
or entity, as the case may be, shall not, immediately after such merger
or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
SECTION 9.2 Successor Issuer Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation
shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of the
Issuer prior to such succession any or all of the Securities issuable
hereunder which, together with any Coupons appertaining thereto,
theretofore shall not have been signed by the Issuer and delivered to
the Trustee; and, upon the order of such successor corporation instead
of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall
deliver any Securities, together with any Coupons appertaining thereto,
which previously shall have been signed and delivered by the officers of
the Issuer to the Trustee for authentication, and any Securities,
together with any Coupons appertaining thereto, which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued, together
with any Coupons appertaining thereto, shall in all respects have the
same legal rank and benefit under this Indenture as the Securities and
Coupons theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities and Coupons had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made
in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease), the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.
SECTION 9.3 Opinion of Counsel Delivered to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel, prepared in accordance with Section 11.5, as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
ARTICLE X.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Issuer shall have paid or caused to be paid the principal
of and interest on all the Securities of any series Outstanding
hereunder and all unmatured Coupons appertaining thereto (other than
Securities of such series and Coupons appertaining thereto which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for
cancellation all Securities of any series theretofore authenticated and
all unmatured Coupons appertaining thereto (other than any Securities of
such series and Coupons appertaining thereto which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9), or (c) in the case of any series of Securities
where the exact amount of principal of and interest due on such
Securities can be determined at the time of making the deposit referred
to in clause (ii) below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (ii) the Issuer
shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance
with Section 10.4) or direct obligations of the United States of
America, backed by its full faith and credit ("U.S. Government
Obligations"), maturing as to principal and interest in such amounts and
at such times as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest
on all Securities of such series and Coupons appertaining thereto on
each date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are
due and payable in accordance with the terms of the Indenture and the
Securities of such series, and if, in any such case, the Issuer shall
also pay or cause to be paid all other sums payable hereunder by the
Issuer with respect to Securities of such series, then this Indenture
shall cease to be of further effect with respect to Securities of such
series (except as to (i) rights of registration of transfer and exchange
of Securities of such series, and of Coupons appertaining thereto, and
the Issuer's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons,
(iii) rights of Holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders to receive mandatory sinking fund
payments, if any, (iv) the rights (including the Trustee's rights under
Section 10.5), obligations and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2) and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an
Opinion of Counsel which complies with Section 11.5 and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such
series; provided that the rights of Holders of the Securities and
Coupons to receive amounts in respect of principal of and interest on
the Securities and Coupons held by them shall not be delayed longer than
required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Issuer
agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities of such series.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided pursuant
to Section 2.3. In addition to discharge of the Indenture pursuant to
the next preceding paragraph, in the case of any series of Securities
the exact amounts of principal of and interest subsequently due on which
can be determined at the time of making the deposit referred to in
clause (a) below, the Issuer shall be deemed to have paid and discharged
the entire Indebtedness on all the Securities of such a series and the
Coupons appertaining thereto on the 121st day after the date of the
deposit referred to in subparagraph (a) below, and the provisions of
this Indenture with respect to the Securities of such series and Coupons
appertaining thereto shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Securities of such
series, and of Coupons appertaining thereto, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons,
(iii) rights of Holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive sinking fund payments, if
any, (iv) the rights (including the Trustee's rights under Section
10.5), obligations and immunities of the Trustee hereunder, (v) the
rights of the Holders of Securities of such series and Coupons
appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2) and the Trustee,
at the expense of the Issuer, shall at the Issuer's request, execute
proper instruments acknowledging the same, if:
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series and Coupons appertaining thereto (i) cash in an amount or
U.S. Government Obligations, maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash,
or (ii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay (A)
the principal and interest on all Securities of such series and Coupons
appertaining thereto on the date that such principal or interest is due
and payable and (B) any mandatory sinking fund payments on the dates on
which such payments are due and payable in accordance with the terms of
the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Officers' Certificate or
an opinion of independent legal counsel satisfactory to the Trustee to
the effect that Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred; and
(d) the Issuer has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this provision
have been complied with, and the Opinion of Counsel shall also state
that such deposit does not violate applicable law.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the
Trustee (or other trustee) pursuant to Section 10.1 shall be held in
trust and applied by it to the payment, either directly or through any
paying agent (including the Issuer acting as its own paying agent), to
the Holders of the particular Securities of such series and of Coupons
appertaining thereto for the payment or redemption of which such moneys
have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent under
the provisions of this Indenture with respect to such series of
Securities shall, upon demand of the Issuer, be repaid to it or paid to
the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any
Security of any series or Coupons attached thereto and not applied but
remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law,
be repaid to the Issuer by the Trustee for such series or such paying
agent, and the Holder of the Securities of such series and of any
Coupons appertaining thereto shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any payment which
such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease;
provided, however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys deposited
with it for any payment (a) in respect of Registered Securities of any
series, shall at the expense of the Issuer, mail by first-class mail to
Holders of such Securities at their addresses as they shall appear on
the Security register, and (b) in respect of Unregistered Securities of
any series, shall at the expense of the Issuer cause to be published
once, in an Authorized Newspaper in the Borough of Manhattan, The City
of New York, notice, that such moneys remain and that, after a date
specified therein, which shall not be less than 30 days from the date of
such mailing or publication, any unclaimed balance of such money then
remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 10.1 or the principal or interest received in
respect of such obligations.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or
future stockholder, officer or director, as such, of the Issuer or
Trustee or of any successor of either of them, either directly or
through the Issuer or Trustee or any successor of either of them, under
any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities and the Coupons appertaining thereto by the
Holders thereof and as part of the consideration for the issue of the
Securities and the Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation,
other than the parties hereto and their successors and the Holders of
the Securities or Coupons, if any, any legal or equitable right, remedy
or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the
Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the
Trustee or by the Holders of Securities or Coupons to or on the Issuer
may be given or served by being deposited postage prepaid, first-class
mail (except as otherwise specifically provided herein) addressed (until
another address of the Issuer is filed by the Issuer with the Trustee)
to CBRL Group, Inc., 000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000,
Attention: _____________. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons to or upon the Trustee
shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at _____________________________
_______________, Attention: _______________.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register. In any case where notice to such
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 or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of
this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of
such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of
any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion
of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that
the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous. Any certificate, statement or opinion
of counsel may be based, insofar as it relates to factual matters or
information with respect to which is in the possession of the Issuer,
upon the certificate, statement or opinion of or representations by an
officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon
a certificate or opinion of or representations by an accountant or firm
of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the
same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that
such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not be a
Business Day, then payment of interest or principal need not be made on
such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date of maturity or the date
fixed for redemption, and no interest shall accrue for the period after
such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this
Indenture which is required by the Trust Indenture Act of 1939, such
required provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act of 1939
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 11.8 New York Law to Govern. This Indenture and each Security
and Coupon shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with
the laws of such State, except as may otherwise be required by mandatory
provisions of law.
SECTION 11.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 12.2 Election to Redeem; Notice of Redemption; Partial
Redemptions. The election of the Issuer to redeem any Securities shall
be evidenced by, or pursuant to, a Board Resolution which shall identify
the Securities to be redeemed. In the case of any redemption at the
election of the Issuer of the Securities of any series with the same
issue date, interest rate and stated maturity, the Issuer shall, at
least 60 days prior to the redemption date fixed by the Issuer (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee
of the principal amount of securities of such series to be redeemed.
Notice of redemption to the Holders of Registered Securities of any
series to be redeemed as a whole or in part at the option of the Issuer
shall be given by mailing notice of such redemption by first-class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such Holders of Securities of such series
at their last addresses as they shall appear upon the registry books.
Notice of redemption to the Holders of Unregistered Securities to be
redeemed as a whole or in part, who have filed their names and addresses
with the Trustee, shall be given by mailing notice of such redemption,
by first-class mail, postage prepaid, at least 30 days and not more than
60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any
such notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption to all
other Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York,
once in each of three successive calendar weeks, the first publication
to be not less than 30 days nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail,
or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of
such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place
or places of payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with Coupons
attached thereto, of all Coupons appertaining thereto maturing after the
date fixed for redemption, that such redemption is pursuant to the
mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue.
In case any Security of a series is to be redeemed in part, only the
notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the
Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.3) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for
redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If less than all the
Outstanding Securities of a series are to be redeemed at the election of
the Issuer, the Issuer will deliver to the Trustee at least 60 days
prior to the date fixed for redemption (unless a shorter notice shall be
satisfactory to the Trustee) an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to
this Section, an Officers' Certificate stating that such restriction has
been complied with.
If less than all the Securities of any series with the same issue date,
interest rate and stated maturity are to be redeemed, the Trustee shall
select, in such manner as it shall deem appropriate and fair (which may
provide for the selection for redemption of portions of the principal
amount of Registered Securities of such series), the particular
Securities of such Series to be redeemed. Securities may be redeemed in
part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall
promptly notify the Issuer 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 Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to
be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as provided above, the Securities or portions
of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default
in the payment of such Securities at the redemption price, together with
interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the
unmatured Coupons, if any, appertaining thereto shall be void, and,
except as provided in Sections 6.5 and 10.4, such Securities shall cease
from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders thereof shall
have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place
of payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed
by the Issuer at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached
thereto, to the Holders of the Coupons for such interest upon surrender
thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record
date subject to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or
duly provided for, bear interest from the date fixed for redemption at
the rate of interest or Yield to Maturity (in the case of an Original
Issue Discount Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing
after the date fixed for redemption, the surrender of such missing
Coupon or Coupons may be waived by the Issuer and the Trustee, if there
be furnished to each of them such security or indemnity as they may
require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so
presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee
at least 40 days prior to the last date on which notice of redemption
may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the 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 the Securities of any series is herein referred to as an
"optional sinking fund payment". The date on which a sinking fund
payment is to be made is herein referred to as the "sinking fund payment
date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities
of such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer and delivered to
the Trustee for cancellation pursuant to Section 2.10, (b) receive
credit for optional sinking fund payments (not previously so credited)
made pursuant to this Section or (c) receive credit for Securities of
such series (not previously so credited) redeemed by the Issuer through
any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section
11.5) (a) specifying the portion of the mandatory sinking fund payment
to be satisfied by payment of cash and the portion to be satisfied by
credit of Securities of such series and the basis for such credit, (b)
stating that none of the Securities of such series has theretofore been
so credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which have
not been waived or cured) and are continuing and (d) stating whether or
not the Issuer intends to exercise its right to make an optional sinking
fund payment with respect to such series and, if so, specifying the
amount of such optional sinking fund payment which the Issuer intends to
pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to
the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall
be delivered for cancellation pursuant to Section 2.10 to the Trustee
with such Officers' Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking
fund payment date. Failure of the Issuer, on or before any such 60th
day, to deliver such Officers' Certificate and Securities specified in
this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely
in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Issuer shall so request)
with respect to the Securities of any particular series, such cash shall
be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption
price together with accrued interest to the date fixed for redemption.
If such amount shall be $50,000 or less and the Issuer makes no such
request then it shall be carried over until a sum in excess of $50,000
is available. The Trustee shall select, in the manner provided in
Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said
cash, as nearly as may be, and shall (if requested in writing by the
Issuer) inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. Securities shall be
excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior to the
sinking fund payment date as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Issuer or (b) an
entity specifically identified in such Officers' Certificate as directly
or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such
series to be given in substantially the manner provided in Section 12.2
(and with the effect provided in Section 12.3) for the redemption of
Securities of such series in part at the option of the Issuer. The
amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any
and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with
other moneys, if necessary, sufficient for the purpose, to the payment
of the principal of, and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be
redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of
Securities for such series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the mailing of notice of
redemption of any Securities shall theretofore have been made, the
Trustee shall redeem or cause to be redeemed such Securities; provided
that it shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall,
during the continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of all such
Securities. In case such Event of Default shall have been waived as
provided in Section 5.10 or the default cured on or before the sixteenth
day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such
Securities.
[signature page follows]
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 ___________________, 1999.
CBRL GROUP, INC.
By
Title:
[CORPORATE SEAL]
Attest:
By
Title:
BANKERS TRUST COMPANY,
as Trustee
By
Title:
[CORPORATE SEAL]
Attest:
By
Title:
STATE OF TENNESSEE )
) ss:
COUNTY OF _________ )
On this _____ of _________________, 1999 before me personally came
__________________, to me known, who, being by me duly sworn, did depose
and say that he is the ___________________ of CBRL Group, Inc., one of
the corporations described in and which executed the above instrument;
that he knows the corporate 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 ___________ )
) ss:
COUNTY OF __________ )
On this _____ of _____________, 1999 before me personally came
_______________, to me known, who, being by me duly sworn, did depose
and say that he is the __________________ of ______________, one of the
corporations described in and which executed the above instrument; that
he knows the corporate 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
