Exhibit 4.2
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CHAMPION ENTERPRISES, INC.,
Issuer
AND
BANK ONE TRUST COMPANY, N.A.,
Trustee
-----------------------------------
INDENTURE
Dated as of [ ], 2000
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Subordinated Debt Securities
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CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Indenture
------------------- -----------
310(a)...................................................... 7.09
310(b)...................................................... 7.08
7.10
310(c)...................................................... Inapplicable
311(a)...................................................... 7.13
311(b)...................................................... 7.13
311(c)...................................................... Inapplicable
312(a)...................................................... 5.01
5.02(a)
312(b)...................................................... 5.02(c)
312(c)...................................................... 5.02(c)
313(a)...................................................... 5.04(a)
313(b)...................................................... 5.04(b)
313(c)...................................................... 5.04(a)
5.04(b)
313(d)...................................................... 5.04(c)
314(a)...................................................... 5.03
314(b)...................................................... Inapplicable
314(c)...................................................... 13.07
314(d)...................................................... Inapplicable
314(e)...................................................... 13.07
314(f)...................................................... Inapplicable
315(a)...................................................... 7.01
315(b)...................................................... 7.14
315(c)...................................................... 7.01(a)
315(d)...................................................... 7.01(b)
315(e)...................................................... 6.07
316(a)...................................................... 6.06
8.04
316(b)...................................................... 6.04
316(c)...................................................... 8.01
317(a)...................................................... 6.02
317(b)...................................................... 4.03
318(a)...................................................... 13.09
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* This Cross-Reference Table does not constitute part of the Indenture
and shall not have any bearing on the interpretation of any of its
terms or provisions.
TABLE OF CONTENTS*
Page
PARTIES.................................................................... 1
RECITALS................................................................... 1
--------
* This Table of Contents does not constitute part of the Indenture and
shall not have any bearing upon the interpretation of any of its
terms or provisions.
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions of Terms..........................................1
Affiliate.....................................................1
Authenticating Agent..........................................2
Bankruptcy Law................................................2
Board of Directors............................................2
Board Resolution..............................................2
Business Day..................................................2
Certificate...................................................2
Company.......................................................2
Corporate Trust Office........................................2
Custodian.....................................................3
Default.......................................................3
Depositary....................................................3
Event of Default..............................................3
Global Security...............................................3
Governmental Obligations......................................3
Guarantee.....................................................3
Guaranty Agreement............................................4
"herein", "hereof" and "hereunder"............................4
Indenture.....................................................4
Interest......................................................4
Interest Payment Date.........................................4
Officer.......................................................4
Officers' Certificate.........................................4
Opinion of Counsel............................................4
Original Issue Discount Security..............................4
Outstanding...................................................5
Person........................................................5
Predecessor Security..........................................5
Responsible Officer...........................................5
Securities....................................................5
Securityholder................................................5
Subsidiary....................................................5
Subsidiary Guarantor..........................................6
Subsidiary Guarantee..........................................6
Trustee.......................................................6
Trust Indenture Act...........................................6
Yield to Maturity.............................................6
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities...........................6
SECTION 2.02 Form of Securities and Trustee's Certificate..................9
SECTION 2.03 Denominations; Provisions for Payment.........................9
SECTION 2.04 Execution and Authentication.................................11
SECTION 2.05 Registration of Transfer and Exchange........................12
SECTION 2.06 Temporary Securities.........................................13
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities..............14
SECTION 2.08 Cancellation.................................................15
SECTION 2.09 Benefits of Indenture........................................15
SECTION 2.10 Authenticating Agent.........................................15
SECTION 2.11 Global Securities............................................16
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption...................................................17
SECTION 3.02 Notice of Redemption.........................................17
SECTION 3.03 Payment Upon Redemption......................................19
SECTION 3.04 Sinking Fund.................................................19
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities........19
SECTION 3.06 Redemption of Securities for Sinking Fund....................20
ARTICLE IV.
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest...................20
SECTION 4.02 Maintenance of Office or Agency..............................20
SECTION 4.03 Paying Agents................................................21
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.............22
SECTION 4.05 Compliance with Consolidation Provisions.....................22
SECTION 4.06 Statement by Officers as to Default..........................22
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders..............................................23
SECTION 5.02 Preservation of Information; Communications with
Securityholders..............................................23
SECTION 5.03 Reports by the Company.......................................23
SECTION 5.04 Reports by the Trustee.......................................24
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default............................................25
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement
by Trustee...................................................27
SECTION 6.03 Application of Moneys Collected..............................28
SECTION 6.04 Limitation on Suits..........................................29
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission
Not Waiver...................................................30
SECTION 6.06 Control by Securityholders...................................30
SECTION 6.07 Undertaking to Pay Costs.....................................31
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee...............31
SECTION 7.02 Certain Rights of Trustee....................................33
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or
Securities...................................................34
SECTION 7.04 May Hold Securities..........................................34
SECTION 7.05 Moneys Held in Trust.........................................34
SECTION 7.06 Compensation and Reimbursement...............................35
SECTION 7.07 Reliance on Officers' Certificate............................35
SECTION 7.08 Disqualification; Conflicting Interests......................36
SECTION 7.09 Corporate Trustee Required; Eligibility......................36
SECTION 7.10 Resignation and Removal; Appointment of Successor............36
SECTION 7.11 Acceptance of Appointment By Successor.......................37
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
Business.....................................................39
SECTION 7.13 Preferential Collection of Claims Against the Company........39
SECTION 7.14 Notice of Defaults...........................................39
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders........................40
SECTION 8.02 Proof of Execution by Securityholders........................40
SECTION 8.03 Who May be Deemed Owners.....................................41
SECTION 8.04 Certain Securities Owned by Company Disregarded..............41
SECTION 8.05 Actions Binding on Future Securityholders....................42
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders..............................................42
SECTION 9.02 Supplemental Indentures With Consent of Securityholders......43
SECTION 9.03 Effect of Supplemental Indentures............................44
SECTION 9.04 Securities Affected by Supplemental Indentures...............44
SECTION 9.05 Execution of Supplemental Indentures.........................45
SECTION 9.06 Conformity with Trust Indenture Act..........................45
ARTICLE X.
SUCCESSOR CORPORATION
SECTION 10.01 Company May Consolidate, Etc.................................45
SECTION 10.02 Successor Substituted........................................46
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee...................46
ARTICLE XI.
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture......................47
SECTION 11.02 Discharge of Obligations.....................................47
SECTION 11.03 Deposited Moneys to be Held in Trust.........................48
SECTION 11.04 Payment of Moneys Held by Paying Agents......................48
SECTION 11.05 Repayment to Company.........................................48
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No Recourse..................................................49
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.............................49
SECTION 13.02 Actions by Successor.........................................50
SECTION 13.03 Notices......................................................50
SECTION 13.04 Notice to Holders of Securities; Waiver......................50
SECTION 13.05 Governing Law................................................51
SECTION 13.06 Effect of Headings and Table of Contents.....................51
SECTION 13.07 Compliance Certificates and Opinions.........................51
SECTION 13.08 Payments on Business Days....................................51
SECTION 13.09 Conflict with Trust Indenture Act............................52
SECTION 13.10 Counterparts.................................................52
SECTION 13.11 Separability.................................................52
SECTION 13.12 Assignment...................................................52
ARTICLE XIV.
SUBORDINATION OF SECURITIES
SECTION 14.01 Subordination Terms..........................................53
INDENTURE, dated as of [ ], 2000, among Champion Enterprises,
Inc., a Michigan corporation (the "Company"), and Bank One Trust Company,
N.A., as trustee (the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the execution and delivery of this Indenture to provide for
the issuance of unsecured subordinated debt securities (hereinafter
referred to as the "Securities"), in an unlimited aggregate principal
amount to be issued from time to time in one or more series as in this
Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the
purchase of the Securities by the holders thereof, it is mutually
covenanted and agreed as follows for the equal and ratable benefit of the
holders of Securities:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for
all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this instrument.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to
vote 10% or more of the outstanding voting securities or other ownership
interests of the specified Person, (b) any Person 10% or more of whose
outstanding voting securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the specified
Person, (c) any Person directly or indirectly controlling, controlled by,
or under common control with the specified Person, (d) a partnership in
which the specified Person is a general partner, (e) any officer or
director of the specified Person, and (f) if the specified Person is an
individual, any entity of which the specified Person is an officer,
director or general partner.
"Authenticating Agent" means an authenticating agent with
respect to all or any of the series of Securities appointed with respect to
all or any series of the Securities by the Trustee pursuant to Section
2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" means, with respect to any series of Securities,
any day other than a day on which Federal or State banking institutions in
the Borough of Manhattan, The City of New York, are authorized or obligated
by law, executive order or regulation to close.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer, the Treasurer or the
principal accounting officer of the Company. The Certificate need not
comply with the provisions of Section 13.07.
"Company" means Champion Enterprises, Inc., a corporation duly
organized and existing under the laws of the State of Michigan, and,
subject to the provisions of Article Ten, shall also include its successors
and assigns.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 0
Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, except that whenever a provision
herein refers to an office or agency of the Trustee in the Borough of
Manhattan, The City of New York, such office is located, at the date
hereof, at 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement
designed to protect such Person against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Securities of any series,
for which the Company shall determine that such Securities will be issued
as a Global Security, The Depository Trust Company, New York, New York,
another clearing agency, or any successor registered as a clearing agency
under the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Securities of a
particular series any event specified in Section 6.01, continued for the
period of time, if any, therein designated.
"Global Security" means, with respect to any series of
Securities, a Security executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in
accordance with the Indenture, which shall be registered in the name of the
Depositary or its nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America that, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any indebtedness of any
other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such indebtedness or other obligation
of such Person (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or
services, to take-or-pay or to maintain financial statement conditions or
otherwise) or (b) entered into for the purpose of assuring in any other
manner the obligee of such indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
"Guaranty Agreement" means a supplemental indenture, in a form
satisfactory to the Trustee, pursuant to which a Person Guarantees the
Company's obligations with respect to a series of Securities.
"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.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into in accordance with the terms
hereof.
"Interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after maturity,
means interest payable after maturity.
"Interest Payment Date", when used with respect to any
installment of interest on a Security of a particular series, means the
date specified in such Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due
and payable.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, any Executive Vice President, any Vice President, the Treasurer or
the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
officers that is delivered to the Trustee in accordance with the terms
hereof. Each such certificate shall include the statements provided for in
Section 13.07, if and to the extent required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal
counsel, who may be an employee of or counsel for the Company that is
delivered to the Trustee in accordance with the terms hereof. Each such
opinion shall include the statements provided for in Section 13.07, if and
to the extent required by the provisions thereof.
"Original Issue Discount Security" means any Security which (i)
is issued at a price lower than the amount payable upon the Maturity
thereof and (ii) provides for an amount less than the principal amount
thereof to be due and payable upon redemption or a declaration of
acceleration of the Maturity thereof pursuant to Section 6.01.
"Outstanding", when used with reference to Securities of any
series, means, subject to the provisions of Section 8.04, as of any
particular time, all Securities of that series theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to
the Trustee or any paying agent for cancellation or that have previously
been canceled; (b) Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.07.
"Person" means any individual, corporation, limited liability
company, partnership, joint-venture, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned by the Trustee to administer corporate trust
matters, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"Securities" means the debt Securities authenticated and
delivered under this Indenture.
"Securityholder", "holder of Securities", "registered holder",
or other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership, limited liability company, or other business
entity of which more than 50% of the total voting power of shares of
capital stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by (a) such Person, (b) such Person and
one or more Subsidiaries of such Person or (c) one or more Subsidiaries of
such Person.
"Subsidiary Guarantor" means any Subsidiary of the Company that
provides a Guarantee of the obligations of the Company with respect to any
series of Securities or enters into a Guaranty Agreement that becomes a
Subsidiary Guarantor pursuant to Section 4.07.
"Subsidiary Guarantee" means a Guarantee, including any
Guaranty Agreement, provided by a Subsidiary Guarantor of the Company's
obligations with respect to any series of Securities.
"Trustee" means Bank One Trust Company, N.A., and, subject to
the provisions of Article Seven, shall also include its successors and
assigns, and, if at any time there is more than one Person acting in such
capacity hereunder, "Trustee" shall mean each such Person. The term
"Trustee" as used with respect to a particular series of the Securities
shall mean the trustee with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in
effect at the date of execution of this instrument.
"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.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series up to the aggregate
principal amount of Securities of that series from time to time authorized
by or pursuant to a Board Resolution of the Company or pursuant to one or
more indentures supplemental hereto. Prior to the initial issuance of
Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company, and set forth in an Officers' Certificate
of the Company, or established in one or more indentures supplemental
hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of that series);
(3) whether any of the Securities of the series will be
issuable in whole or in part in temporary or permanent global form or
in the form of book-entry securities and, in such case, the identity
for the Depositary for such series;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates, which may be fixed or variable, at which
the Securities of the series shall bear interest or the manner of
calculation of such rate or rates, if any;
(6) the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest will be payable or
the manner of determination of such Interest Payment Dates and the
record date for the determination of holders to whom interest is
payable on any such Interest Payment Dates or the manner of
determination of such record dates;
(7) the place or places where payments with respect to the
Securities of the series shall be payable;
(8) the right, if any, to defer payment of interest on the debt
securities and the maximum length of any deferral period;
(9) the date, if any, after which, the price or prices at which
and the terms and conditions upon which, Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions (including payments made in cash in
participation of future sinking fund obligations) or at the option of
a holder thereof and the date or dates, if any, on which, the price
or prices at which, and the terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(11) the subordination terms of the Securities of the series;
(12) if other than denominations of one thousand U.S. dollars
($1,000) or any integral multiple thereof, the denominations in which
the Securities of the series shall be issuable;
(13) whether the series of Securities will be subject to any
mandatory or optional sinking fund or similar provisions;
(14) the currency or currency units in which payment of the
principal of and any premium and interest on the Securities of the
series shall be payable;
(15) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by non-U.S.
persons in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional
amounts;
(16) the terms pursuant to which the Securities of the series
are subject to defeasance and satisfaction and discharge;
(17) any addition to, or modification or deletion of, any
Events of Default or covenants provided for with respect to the
Securities of the series;
(18) the terms and conditions, if any, pursuant to which the
Securities of the series are secured;
(19) whether the Securities of the series will be convertible
into shares of common stock or other securities of the Company and,
if so, the terms and conditions upon which such Securities will be so
convertible, including whether conversion is mandatory, at the option
of the holder, or at the option of the Company, the conversion price,
the conversion period and any provisions pursuant to which the number
of shares of common stock or other securities of the Company to be
received by the holders of such series of Securities would be subject
to adjustment;
(20) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01;
(21) any provisions granting special rights to holders when a
specified event occurs;
(22) any special tax implications of the Securities of the
series, including provisions for Original Issue Discount Securities,
if offered;
(23) the form of the Securities of the series including the
form of the Certificate of Authentication for such series; and
(24) any and all other terms with respect to such series
including any terms which may be required by or advisable under
United States laws or regulations or advisable in connection with the
marketing of Securities of that series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to any such Board Resolution or in any indentures
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution of the Company, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers' Certificate of the Company setting forth
the terms of the series.
Securities of any particular series may be issued at various
times, with different dates on which the principal or any installment of
principal is payable, with different rates of interest, if any, or
different methods by which rates of interest may be determined, with
different dates on which such interest may be payable and with different
redemption dates. Unless otherwise provided, a series may be reopened for
issuances of additional Securities of such series.
SECTION 2.02 Form of Securities and Trustee's Certificate.
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental
hereto or as provided in a Board Resolution of the Company and as set forth
in an Officers' Certificate of the Company and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Securities of that series may be listed, or to
conform to usage.
SECTION 2.03 Denominations; Provisions for Payment.
The Securities shall be issuable as registered Securities and
in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.01(12). The Securities of a
particular series shall bear interest payable on the dates and at the rate
specified with respect to that series. Unless otherwise provided pursuant
to Section 2.01, the principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior
to maturity, shall be payable in the coin or currency of the United States
of America that at the time is legal tender for public and private debt, at
the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, the City and State of New York which, unless
otherwise specified with respect to any series of Securities, shall be the
Corporate Trust Office of the Trustee. Each Security shall be dated the
date of its authentication. Unless otherwise provided pursuant to Section
2.01, interest on the Securities shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment.
Unless otherwise provided in the terms of a series of Securities, at the
option of the Company, payment of interest may be mailed by check to the
holders of the Securities of any series at their respective addresses set
forth in the Security Register. In the event that any Security of a
particular series or portion thereof is called for redemption and the
redemption date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on
such Security will be paid upon presentation and surrender of such Security
as provided in Section 3.03.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Securities of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder; and such
Defaulted Interest shall be paid by the Company, at its election, as
provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage
prepaid, to each Securityholder at his or her address as it appears
in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special
record date and shall be no longer payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on
any Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company
or one or more indentures supplemental hereto establishing the terms of any
series of Securities pursuant to Section 2.01 hereof, the term "regular
record date" as used in this Section with respect to a series of Securities
with respect to any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to
Section 2.01 hereof shall occur, if such Interest Payment Date is the
fifteenth day of a month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried
by such other Security.
SECTION 2.04 Execution and Authentication.
Two Officers shall sign the Securities for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of
such Securities, signed by two Officers, and the Trustee in accordance with
such written order shall authenticate and deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate stating that the form and terms thereof have been established
in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner that is not reasonably
acceptable to the Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation
thereof at the office or agency of the Company designated for such purpose
in the Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, all as provided in
this Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Security or Securities of the
same series that the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office
or agency designated for such purpose in the Borough of Manhattan, the City
and State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. Unless otherwise specified in a supplemental
indenture, the Trustee is hereby appointed as "Security Registrar" for the
purpose of registering Securities and transfer of Securities of each
series.
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose, the Company shall
execute, the Trustee shall authenticate and such office or agency shall
deliver in the name of the transferee or transferees a new Security or
Securities of the same series as the Security presented for a like
aggregate principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by
such holder's duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities in case
of partial redemption of any series, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, the second
paragraph of Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or
portions thereof called for redemption except the unredeemed portion of any
Securities of any series being redeemed in part. The provisions of this
Section 2.05 are, with respect to any Global Security, subject to Section
2.11 hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Securities shall be substantially
in the form of the definitive Securities in lieu of which they are issued,
but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company. Every
temporary Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will furnish
definitive Securities of such series and thereupon any or all temporary
Securities of such series may be surrendered in exchange therefor (without
charge to the holders), at the office or agency of the Company designated
for the purpose in the Borough of Manhattan, the City and State of New
York, and the Trustee shall authenticate and such office or agency shall
deliver in exchange for such temporary Securities an equal aggregate
principal amount of definitive Securities of such series, unless the
Company advises the Trustee to the effect that definitive Securities need
not be executed and furnished until further notice from the Company. Until
so exchanged, the temporary Securities of such series shall be entitled to
the same benefits under this Indenture as definitive Securities of such
series authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen.
In every case the applicant for a substituted Security shall furnish to the
Company and the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and the Trustee
evidence to their satisfaction of the destruction, loss or theft of the
applicant's Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the
written request or authorization of any Officer of the Company. Upon the
issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security that
has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as
they may require to save them harmless, and, in case of destruction, loss
or theft, evidence to the satisfaction of the Company and the Trustee of
the destruction, loss or theft of such Security and of the ownership
thereof.
Every replacement Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities, and shall
preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08 Cancellation.
All Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to
the Company or any paying agent, be delivered to the Trustee for
cancellation, or, if surrendered to the Trustee, shall be cancelled by it,
and no Securities shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture. On
request of the Company at the time of such surrender, the Trustee shall
deliver to the Company canceled Securities held by the Trustee. In the
absence of such request the Trustee may dispose of canceled Securities in
accordance with its standard procedures and deliver a certificate of
disposition to the Company. If the Company shall otherwise acquire any of
the Securities, however, such acquisition shall not operate as a redemption
or satisfaction of the indebtedness represented by such Securities unless
and until the same are delivered to the Trustee for cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Securities (and, with respect to the
provisions of Article Fourteen, the holders of senior indebtedness) any
legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained;
all such covenants, conditions and provisions being for the sole benefit of
the parties hereto and of the holders of the Securities (and, with respect
to the provisions of Article Fourteen, the holders of senior indebtedness).
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain
Outstanding there may be an Authenticating Agent for any or all such series
of Securities which the Trustee, with the consent of the Company, shall
have the right to appoint. Said Authenticating Agent shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series
issued upon exchange, transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. All references in this Indenture to
the authentication of Securities by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be a corporation that has a combined capital and
surplus, as most recently reported or determined by it, sufficient under
the laws of any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and that is otherwise
authorized under such laws to conduct such business and is subject to
supervision or examination by Federal or State authorities. If at any time
any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Trustee and to the Company. The
Trustee may at any time (and upon request by the Company shall) terminate
the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon
resignation, termination or cessation of eligibility of any Authenticating
Agent, the Trustee may appoint an eligible successor Authenticating Agent
acceptable to the Company. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if originally
named as an Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01
that the Securities of a particular series are issuable as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, such of the Outstanding Securities of
such series as shall be specified therein and that the aggregate amount of
Outstanding Securities represented thereby may from time to time be
increased or reduced to reflect exchanges, (ii) shall be registered in the
name of the Depositary or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and
(iv) shall bear a legend substantially to the following effect: "Except as
otherwise provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary." Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner
and upon instructions given by such Person or Persons as shall be specified
therein or in the written request signed in the name of the Company, by two
Officers thereof to be delivered to the Trustee pursuant to Section 2.04 or
Section 2.06.
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in
the manner provided in Section 2.05, only to another nominee of the
Depositary for such series, or to a successor Depositary for such series
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary for a series of the
Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such series or if at any time the Depositary for such
series shall no longer be registered or in good standing under the Exchange
Act, or other applicable statute or regulation, and a successor Depositary
for such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the
case may be, this Section 2.11 shall no longer be applicable to the
Securities of such series and the Company will execute, and subject to
Section 2.05, the Trustee will authenticate and deliver the Securities of
such series in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security of such series in exchange for such Global
Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply
to the Securities of such series. In such event the Company will execute
and subject to Section 2.05, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate
and deliver the Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security of such series
in exchange for such Global Security. Upon the exchange of the Global
Security for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in exchange
for the Global Security pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued
hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Securities of any
series in accordance with the right reserved so to do, the Company shall,
or shall cause the Trustee to, give notice of such redemption to holders of
the Securities of such series to be redeemed by mailing, first class
postage prepaid, a notice of such redemption not less than 30 days and not
more than 60 days before the date fixed for redemption of that series to
such holders at their last addresses as they shall appear upon the Security
Register unless a shorter period is specified in the Securities to be
redeemed. Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price (or the manner of calculation thereof)
at which Securities of that series are to be redeemed, and shall state that
payment of the redemption price of such Securities to be redeemed will be
made at the office or agency of the Company in the Borough of Manhattan,
the City and State of New York, upon presentation and surrender of such
Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, that from and after said date interest
will cease to accrue and that the redemption is for a sinking fund, if such
is the case. If less than all the Securities of a series are to be
redeemed, the notice to the holders of Securities of that series to be
redeemed in whole or in part shall specify the particular Securities to be
so redeemed. In case any Security is to be redeemed in part only, the
notice that relates to such Security shall state the portion of the
principal amount thereof to be redeemed, and shall state that on and after
the redemption date, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the Securities of a series are to be
redeemed, the Company shall give the Trustee at least 30 days' notice in
advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and that may provide for the
selection of a portion or portions (equal to one thousand U.S. dollars
($1,000) or any integral multiple thereof) of the principal amount of such
Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by any Officer, instruct the Trustee
or any paying agent to call all or any part of the Securities of a
particular series for redemption and to give notice of redemption in the
manner set forth in this Section, such notice to be in the name of the
Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent,
as the case may be, such Security Register, transfer books or other
records, or suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may be
required under the provisions of this Section.
SECTION 3.03 Payment Upon Redemption.
(a) If the giving of notice of redemption shall have been
completed as above provided, the Securities or portions of Securities of
the series to be redeemed specified in such notice shall become due and
payable on the date and at the place stated in such notice at the
applicable redemption price, together with interest accrued to the date
fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to
be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new
Security of the same series of authorized denominations in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be
applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 3.05. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with
Securities.
The Company (i) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) and (ii) may
apply as a credit Securities of a series that have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in satisfaction of
all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities
as provided for by the terms of such series, provided that such Securities
have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified
in such Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of the series, the
portion thereof, if any, that is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will, together with such Officers' Certificate, deliver
to the Trustee any Securities to be so delivered. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 3.02. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Section 3.03.
ARTICLE IV.
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay or cause to be paid
the principal of and any premium and interest on the Securities of that
series at the time and place and in the manner provided herein and
established with respect to such Securities.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the
Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at
such other location or locations as may be designated as provided in this
Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be given or served, such designation to continue
with respect to such office or agency until the Company shall, by written
notice signed by an Officer and delivered to the trustee, designate some
other office or agency for such purposes or any of them. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
notices and demands may be made or served at the Corporate Trust Office of
the Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, notices and demands.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more paying agents for
all or any series of the Securities, other than the Trustee, the Company
will cause each such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and any premium or interest on the
Securities of that series (whether such sums have been paid to it by
the Company or by any other obligor of such Securities) in trust for
the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor of such Securities) to make any
payment of the principal of and any premium or interest on the
Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as
set forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Securities, it will on or before each due date
of the principal of and any premium or interest on Securities of that
series, set aside, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay such principal and any
premium or interest so becoming due on Securities of that series until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Securities) to take such
action. Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the principal of
and any premium or interest on any Securities of that series, deposit with
the paying agent a sum sufficient to pay the principal and any premium or
interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium or interest, and (unless
such paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary,
(i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any paying agent to pay,
to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms and conditions as
those upon which such sums were held by the Company or such paying agent;
and, upon such payment by any paying agent to the Trustee, such paying
agent shall be released from all further liability with respect to such
money.
SECTION 4.04 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section
7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.05 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain
Outstanding, consolidate with, or merge into, or merge into itself, or sell
or convey all or substantially all of its property to any other company
unless the provisions of Article Ten hereof are complied with.
SECTION 4.06 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate signed by its principal executive officer, principal
financial officer or principal accounting officer stating whether or not to
the best knowledge of the signer thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions
of this Indenture, and if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may have
knowledge.
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the
Trustee (a) semiannually on January 15 and July 15, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
holders of each series of Securities as of such regular record date,
provided that the Company shall not be obligated to furnish or cause to
furnish such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and (b)
at such other times as the Trustee may request in writing within 30 days
after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished; provided, however, that, in either case, no such list
need be furnished for any series for which the Trustee shall be the
Security Registrar.
SECTION 5.02 Preservation of Information; Communications
with Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of
the holders of Securities contained in the most recent list furnished to it
as provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar
(if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section
312(b) of the Trust Indenture Act with other Securityholders with respect
to their rights under this Indenture or under the Securities. The Company,
the Trustee, the Security Registrar and anyone else shall have the
protection of Section 312(c) of the Trust Indenture Act.
SECTION 5.03 Reports by the Company.
(a) The Company covenants and agrees to file with the Trustee,
within 30 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribe)
that the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not
required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports that may be required pursuant to Section 13 of the
Exchange Act, in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the Trustee
and the Commission, in accordance with the rules and regulations prescribed
from to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to
time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first
class postage prepaid, or reputable over-night delivery service that
provides for evidence of receipt, to the Securityholders, as their names
and addresses appear upon the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 5.04 Reports by the Trustee.
(a) On or before July 1 in each year in which any of the
Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses
appear upon the Security Register, a brief report dated as of the preceding
May 1, if and to the extent required under Section 313(a) of the Trust
Indenture Act.
(b) The Trustee shall comply with Section 313(b) and 313(c)
of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the
Trustee when any Securities become listed on any stock exchange.
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a
particular series, "Event of Default" means any one or more of the
following events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of
interest upon any of the Securities of that series, as and when the
same shall become due and payable, and continuance of such default
for a period of 30 days; provided, however, that a valid extension of
an interest payment period by the Company in accordance with the
terms of any indenture supplemental hereto, shall not constitute a
default in the payment of interest for this purpose;
(2) the Company defaults (a) in the payment of the principal of
(or premium, if any, on) any of the Securities of that series as and
when the same shall become due and payable whether at maturity, upon
redemption, by declaration or otherwise, or (b) in any payment
required by any sinking or analogous fund established with respect to
that series, whether or not such payment is prohibited by Article
Fourteen and the provisions of any indenture supplemental hereto;
(3) the Company fails to observe or perform any other of its
covenants or agreements with respect to that series contained in this
Indenture or otherwise established with respect to that series of
Securities pursuant to Section 2.01 hereof (other than a covenant or
agreement that has been expressly included in this Indenture solely
for the benefit of one or more series of Securities other than such
series) for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied and stating
that such notice is a "Notice of Default" hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in
principal amount of the Securities of that series at the time
Outstanding;
(4) if the Securities of the series are convertible into shares
of common stock or other securities of the Company, failure by the
Company to deliver common stock or the other securities when the
holder or holders of such Securities elect to convert such Securities
into shares of common stock or other securities of the Company;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company for all or
substantially all of their respective property, or (iii) orders the
liquidation of the Company and the order or decree remains unstayed
and in effect for 90 days; or
(7) any other Event of Default provided with respect to
Securities of that series.
(b) In each and every such case, unless the principal of all
the Securities of that series shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given
by such Securityholders), may declare the principal (or, if the Securities
of such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of,
premium, if any, and accrued interest, if any, on all the Securities of
that series to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable,
notwithstanding anything contained in this Indenture or in the Securities
of that series or established with respect to that series pursuant to
Section 2.01 to the contrary.
(c) At any time after the principal of the Securities of that
series shall have been so declared due and payable, and before any judgment
or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the holders of a majority in aggregate
principal amount of the Securities of that series then Outstanding
hereunder, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if: (i) the Company has
paid or deposited with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Securities of that
series that shall have become due otherwise than by acceleration (with
interest upon such principal and premium, if any, and, to the extent that
such payment is enforceable under applicable law, upon overdue installments
of interest, at the rate per annum or Yield to Maturity (in the case of
Original Issue Discount Securities) expressed in the Securities of that
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 the amount payable to the Trustee under Section 7.06, and (ii) any and
all Events of Default under the Indenture with respect to such series,
other than the non-payment of principal, premium, if any, or interest on
Securities of that series that (or, if any Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in
the terms thereof) shall not have become due by their terms, shall have
been remedied or waived as provided in Section 6.06.
No such rescission and annulment shall extend to or shall
affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in
the payment of any installment of interest on any of the Securities of a
series, or any payment required by any sinking or analogous fund
established with respect to that series as and when the same shall have
become due and payable, and such default shall have continued for a period
of 30 days, or (2) in case it shall default in the payment of the principal
of (or premium, if any, on) any of the Securities of a series when the same
shall have become due and payable, whether upon maturity of the Securities
of a series or upon redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit
of the holders of the Securities of that series, the whole amount that then
shall have been become due and payable on all such Securities for principal
(and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the
extent that payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate per annum expressed in
the Securities of that series; and, in addition thereto, such further
amount as shall be sufficient to cover the reasonable costs and expenses of
collection, and the amount payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Securities of that series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or other obligor upon the Securities of that
series, wherever situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affected the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may
be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under
the Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Securityholders, to pay to
the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of
any of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights, either
at law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in the Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing contained herein shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of that series or the rights of any
holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION 6.03 Application of Moneys Collected.
Any moneys collected by the Trustee pursuant to this Article
with respect to a particular series of Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal (or premium, if
any) or interest, upon presentation of the Securities of that series, and
notation thereon the payment, if only partially paid, and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and
of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of all senior indebtedness of the
Company if and to the extent required by Article Fourteen; and
THIRD: To the payment of the amounts then due and unpaid upon
Securities of such series for principal and any premium and interest,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by
virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with
respect to this Indenture or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless (i) such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Securities of such series
specifying such Event of Default, as hereinbefore provided; (ii) the
holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own
name as trustee hereunder; (iii) such holder or holders shall have offered
to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby; and (iv)
the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity, shall have failed to institute any such action, suit or
proceeding and (v) during such 60 day period, the holders of a majority in
principal amount of the Securities of that series do not give the Trustee a
direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any
other provisions of this Indenture, the right of any holder of any Security
to receive payment of the principal of and any premium and (subject to
Section 2.03) interest on such Security, as therein provided, on or after
the respective due dates expressed in such Security (or in the case of
redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or
redemption date, shall not be impaired or affected without the consent of
such holder and by accepting a Security hereunder it is expressly
understood, intended and covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the
Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of
the holders of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Securities of such
series. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or
Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers
and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not
exclusive of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in
this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any
of the Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or on
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to
such series; provided, however, that such direction shall not be in
conflict with any rule of law or with this Indenture or be unduly
prejudicial to the rights of holders of Securities of such series not
consenting; and provided, further, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction. Prior to the taking of any action hereunder, the Trustee shall
be entitled to reasonable indemnification satisfactory to the Trustee
against all losses and expenses caused by taking or not taking such action.
Subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee in good faith shall,
by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the Securities of
any series at the time Outstanding affected thereby, determined in
accordance with Section 8.04, may on behalf of the holders of all of the
Securities of such series waive any past default in the performance of any
of the covenants contained herein or established pursuant to Section 2.01
with respect to such series and its consequences, except a default in the
payment of the principal of or any premium or interest on, any of the
Securities of that series as and when the same shall become due by the
terms of such Securities otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments
of interest and principal and any premium has been deposited with the
Trustee (in accordance with Section 6.01(c)). Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of
this Indenture and the Company, the Trustee and the holders of the
Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Securities by such holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Securityholder, or group of Securityholders, holding
more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due
dates expressed in such Security or established pursuant to this Indenture.
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a series and after the curing of all
Events of Default with respect to the Securities of that series that may
have occurred, shall undertake to perform with respect to the Securities of
such series such duties and only such duties as are specifically set forth
in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
the Securities of a series has occurred (that has not been cured or
waived), the Trustee shall exercise with respect to Securities of that
series such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect
to the Securities of a series and after the curing or waiving of all
such Events of Default with respect to that series that may have
occurred:
(i) the duties and obligations of the Trustee shall with
respect to the Securities of such series be determined solely
by the express provisions of this Indenture, and the Trustee
shall not be liable with respect to the Securities of such
series except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Securities of such
series conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirement of
this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee, was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding
(determined as provided in Section 8.04) relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture with respect to the Securities of that
series; and
(4) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(a) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company, by two Officers thereof
(unless other evidence in respect thereof is specifically prescribed
herein);
(c) The Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders, pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Securities (that has not been cured or waived) to exercise with respect to
Securities of that series such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of
the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance
or Securities.
(a) The recitals contained herein and in the Securities shall
be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or
application by the Company of any of the Securities or of the proceeds of
such Securities, or for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture or
established pursuant to Section 2.01, or for the use or application of any
moneys received by any paying agent other than the Trustee.
SECTION 7.04 May Hold Securities.
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee,
paying agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, all moneys received
by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and
the Trustee shall be entitled to, such compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust), as the Company, and the Trustee may from time to time
agree in writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all Persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the
Trustee (and its officers, agents, directors and employees) for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including
the reasonable costs and expenses of defending itself against any claim of
liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for reasonable expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities. The provisions of
this Section 7.06 shall survive the resignation or removal of the Trustee
and the termination of this Indenture.
SECTION 7.07 Reliance on Officers' Certificate.
Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting to take any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted to be
taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the
Trustee and the Company shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the
Securities issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America
or any State or Territory thereof or of the District of Columbia, or a
corporation or other Person permitted to act as trustee by the Commission,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. The Company may
not, nor may any Person directly or indirectly controlling, controlled by,
or under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
(a) The Trustee or any successor hereafter appointed, may at
any time resign with respect to the Securities of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security
Register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee with respect to Securities of such
series by or pursuant to a Board Resolution. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after
the mailing of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security
or Securities for at least six months may on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or
Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or commence a voluntary bankruptcy
proceeding, or a receiver of the Trustee or of its property shall be
appointed or consented to, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such
case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by or pursuant to a Board
Resolution, or, unless the Trustee's duty to resign is stayed as
provided herein, any Securityholder who has been a bona fide holder
of a Security or Securities for at least six months may, on behalf of
that holder and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the
consent of the Company.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee with respect to the Securities of a series pursuant
to any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section
may be appointed with respect to the Securities of one or more series or
all of such series, and at any time there shall be only one Trustee with
respect to the Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee
with respect to all Securities, every such successor trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor trustee all the
rights, powers, and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates, (2) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that no Trustee shall
be responsible for any act or failure to act on the part of any other
Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such
successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten
days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense
of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding. In
case any Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the
Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been
removed shall be subject to Section 311(a) of the Trust Indenture Act to
the extent included therein.
SECTION 7.14 Notice of Defaults.
If a default occurs and is continuing hereunder with respect to
Securities of any series and if it is actually known to a Responsible
Officer of the Trustee, the Trustee shall mail to each holder of such
Securities notice of the default within 90 days after is occurs provided,
however, that in the case of any default of the character specified in
Section 6.01(3) with respect to Securities of such series, no such notice
to Holders shall be given until at least 30 days after the occurrence
thereof. Except in the case of a default in payment of principal of or
interest on any Security (including payments pursuant to the mandatory
redemption provisions of such Security, if any), 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 not opposed to the
interest of the holders of such Securities. For the purpose of this
Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any
such action the holders of such majority or specified percentage of that
series have joined therein may be evidenced by any instrument or any number
of instruments of similar tenor executed by such holders of Securities of
that series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Securities of that series shall be computed as
of the record date; provided, however, that no such authorization,
agreement or consent by such Securityholders on the record date shall be
deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record
date.
SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Securityholder (such proof will not
require notarization) or his agent or proxy and proof of the holding by any
Person of any of the Securities shall be sufficient if made in the
following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of
any Security, the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the Person in whose name such Security shall
be registered upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account
of the principal of, premium, if any, and (subject to Section 2.03)
interest on such Security and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any
direction, consent of waiver under this Indenture, the Securities of that
series that are owned by the Company or any other obligor on the Securities
of that series or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver, only Securities of such series that
the Trustee actually knows are so owned shall be so disregarded. The
Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In case
of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the
Securities of a particular series specified in this Indenture in connection
with such action, any holder of a Security of that series that is shown by
the evidence to be included in the Securities the holders of which have
consented to such action may, by filing written notice with the Trustee,
and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken
by the holder of any Security shall be conclusive and binding upon such
holder and upon all future holders and owners of such Security, and of any
Security issued in exchange therefor, on registration of transfer thereof
or in place thereof, irrespective of whether or not any notation in regard
thereto is made upon such Security. Any action taken by the holders of the
majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
holders of all the Securities of that series.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
Securityholders.
In addition to any supplemental indenture otherwise authorized
by this Indenture, the Company and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as then in
effect), without the consent of the Securityholders, for one or more of the
following purposes:
(a) to cure any ambiguity, omission, defect, or inconsistency
herein or in the Securities of any series;
(b) to comply with Article Ten;
(c) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(d) to add Guarantees, including Subsidiary Guarantees, with
respect to debt securities or to release Subsidiary Guarantors from
Subsidiary Guarantees in accordance with the terms of the applicable series
of Securities or to secure a series of Securities;
(e) to add to the covenants of the Company for the benefit of
the holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(f) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes
of issue, authentication, and delivery of Securities, as herein set forth;
(g) to make any change that does not adversely affect the rights
of any Securityholder in any material respect;
(h) to provide for the issuance of and establish the form and
terms and conditions of the Securities of any series as provided in Section
2.01, to establish the form of any certifications required to be furnished
pursuant to the terms of this Indenture or any series of Securities, or to
add to the rights of the holders of any series of Securities; or
(i) to comply with any requirements of the Securities and
Exchange Commission in connection with qualifying, or maintaining the
qualification of, this Indenture under the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of
Securityholders.
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by Board
Resolutions, and the Trustee may from time to time and at any time enter
into an indenture or indentures supplemental hereto (which shall conform to
the provisions of the Trust Indenture Act as then in effect) for the
purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner not covered by Section 9.01 the
rights of the holders of the Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding
affected thereby, (i) change the fixed maturity of any Securities of any
series, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium
payable upon the redemption thereof; (ii) reduce the amount of principal of
an Original Issue Discount Security or any other Security payable upon
acceleration of the maturity thereof; (iii) change the currency in which
any Security or any premium or interest is payable; (iv) impair the right
to enforce any payment on or with respect to any Security; (v) adversely
change the right to convert or exchange, including decreasing the
conversion rate or increasing the conversion price of, such Security (if
applicable); (vi) modify the subordination provisions in a manner adverse
to the holders of such Securities; (vii) if the Securities are secured,
change the terms and conditions pursuant to which the Securities are
secured in a manner adverse to the holders of the secured Securities;
(viii) reduce the percentage in principal amount of outstanding Securities
of any series, the consent of whose holders is required for modification or
amendment of this Indenture or for waiver of compliance with certain
provisions of this Indenture or for waiver of certain defaults; (ix) reduce
the requirements contained in this Indenture for quorum or voting; (x)
change any obligations of the Company to maintain an office or agency in
the places and for the purposes required by the indentures; or (xi) modify
any of the above provisions.
It shall not be necessary for the consent of the
Securityholders of any series affected thereby under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to
the provisions of this Article or of Section 10.01, this Indenture shall,
with respect to such series, be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01,
may bear a notation in form approved by the Company, provided such form
meets the requirements of any exchange upon which such series may be
listed, as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of that series so modified
as to conform, in the opinion of the Trustee and the Company, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Company, authenticated by the Trustee
and delivered in exchange for the Securities of that series then
Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion but shall not be obligated to enter into such
supplemental indenture. The Trustee, subject to the provisions of Section
7.01, shall be provided an Opinion of Counsel and an Officers' Certificate
as conclusive evidence that any supplemental indenture executed pursuant to
this Article is authorized or permitted by, and conforms to, the terms of
this Article and that it is proper for the Trustee under the provisions of
this Article to join in the execution thereof; provided, however, that such
Opinion of Counsel need not be provided in connection with the execution of
a supplemental indenture that establishes the terms of a series of
Securities pursuant to Section 2.01 hereof.
SECTION 9.06 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act of 1939, as
amended, in effect on such date.
ARTICLE X.
SUCCESSOR CORPORATION
SECTION 10.01 Company May Consolidate, Etc.
Unless otherwise specified in a supplemental indenture hereto,
nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person (whether or not affiliated with the Company) or successive
consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or
its successor or successors as an entirety, or substantially as an
entirety, to any other Person (whether or not affiliated with the Company
or its successor or successors) authorized to acquire and operate the same;
provided, however, the Company hereby covenants and agrees that, upon any
such consolidation, merger, sale, conveyance, transfer or other
disposition, the due and punctual payment of the principal of and any
premium and interest on all of the Securities of all series in accordance
with the terms of each series, according to their tenor and the due and
punctual performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with respect to
such series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture satisfactory in form
to the Trustee executed and delivered to the Trustee by the entity formed
by such consolidation, or into which the Company shall have been merged, or
by the entity which shall have acquired such property.
SECTION 10.02 Successor Substituted.
(a) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and any premium and interest on all of the
Securities of all series Outstanding and the due and punctual performance
of all of the covenants and conditions of this Indenture or established
with respect to each series of the Securities pursuant to Section 2.01 to
be performed by the Company with respect to each series, such successor
Person shall succeed to and be substituted for the Company with the same
effect as if it had been named as the Company herein, and thereupon the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
(b) In case of any such consolidation, merger, sale,
conveyance, transfer or other disposition such changes in phraseology and
form (but not in substance) may be made in the Securities thereafter to be
issued as may be appropriate.
(c) Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or acquiring
by purchase or otherwise all or any part of the property of any other
Person (whether or not affiliated with the Company).
SECTION 10.03 Evidence of Consolidation, Etc. to Trustee.
The Trustee, subject to the provisions of Section 7.01, shall
be provided an Opinion of Counsel and an Officers' Certificate as
conclusive evidence that any such consolidation, merger, sale, conveyance,
transfer or other disposition, and any such assumption, comply with the
provisions of this Article.
ARTICLE XI.
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore
authenticated (other than any Securities that shall have ben destroyed,
lost or stolen and that shall have been replaced or paid as provided in
Section 2.07 and Securities for whose payment money or Governmental
Obligations have theretofore been deposited in trust or segregated and held
in trust by the Company and thereupon repaid to the Company or discharged
from such trust, as provided in Section 11.05); or (b) all such Securities
of a particular series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Company shall deposit or cause to
be deposited with the Trustee as trust funds an amount of money in U.S.
dollars sufficient, or non-callable Governmental Obligations, the principal
of and interest on which when due, will be sufficient or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all
Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal and any premium and interest due or to
become due to such date of maturity or date fixed for redemption, as the
case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder with respect to such series by the Company
then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.03, 2.05,
2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of
maturity or redemption date, as the case may be, and Sections 7.06 and
11.05, that shall survive to such date and thereafter, and the Trustee, on
demand of the Company and at the cost and expense of the Company shall
execute proper instruments acknowledging satisfaction of and discharging
this Indenture with respect to such series.
SECTION 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not
become due and payable as described in Section 11.01 shall have been paid
by the Company by depositing irrevocably with the Trustee as trust funds
money in U.S. dollars sufficient or an amount of non-callable Governmental
Obligations, the principal of and interest on which when due, will be
sufficient or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay at maturity
or upon redemption all such Securities of that series not theretofore
delivered to the Trustee for cancellation, including principal and any
premium and interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if the Company shall also pay
or cause to be paid all other sums payable hereunder by the Company with
respect to such series, then after the date such moneys or Governmental
Obligations, as the case may be, are deposited with the Trustee the
obligations of the Company under this Indenture with respect to such series
shall cease to be of further effect except for the provisions of Sections
2.03, 2.05, 2.07, 4,01, 4.02, 4,03, 7.06, 7.10 and 11.05 hereof that shall
survive until such Securities shall mature and be paid. Thereafter,
Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the
Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and
shall be available for payment as due, either directly or through any
paying agent (including the Company acting as its own paying agent), to the
holders of the particular series of Securities for the payment or
redemption of which such moneys or Governmental Obligations have been
deposited with the Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
In connection with the satisfaction and discharge of this
Indenture all moneys or Governmental Obligations then held by any paying
agent under the provisions of this Indenture shall, upon demand of the
Company, be paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any
paying agent or the Trustee, or then held by the Company, in trust for
payment of principal of or premium or interest on the Securities of a
particular series that are not applied but remain unclaimed by the holders
of such Securities for at least two years after the date upon which the
principal of and any premium or interest on such Securities shall have
respectively become due and payable, shall be repaid to the Company on May
31 of each year or (if then held by the Company) shall be discharged from
such trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled
to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Company for the payment thereof.
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are
solely corporate obligations, and that no such personal liability whatever
shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors as such, of the Company or of any
predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII.
MISCELLANEOUS PROVISIONS
SECTION 13.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 13.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force
and effect by the corresponding board, committee or officer of any Person
that shall at the time be the lawful sole successor of the Company.
SECTION 13.03 Notices.
Except as otherwise expressly provided herein any notice or
demand that by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of Securities to or on
the Company may be given or served by being deposited first class postage
prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: Champion
Enterprises, Inc., 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000,
Attention: Xxxx X. Xxxxxxx, Xx. Any notice, election, request or demand by
the Company or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.
SECTION 13.04 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this
Indenture provides for notice to holders of Securities of any event, such
notice shall be sufficiently given to holders of Securities if in writing
and mailed, first-class postage prepaid, to each holder of a Security
affected by such event, at the address of such holder as it appears in the
Security Register, not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice
to holders of Securities by mail, then such notification as shall be made
with the approval of the Trustee shall constitute sufficient notice to such
holder for every purpose hereunder. In any case where notice to holders of
Securities is given by mail, neither the failure to mail such notice, nor
any defect in any notice mailed to any particular holder of a Security
shall affect the sufficiency of such notice with respect to other holders
of Securities given as provided herein.
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 of Securities 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.
SECTION 13.05 Governing Law.
This Indenture and each Security shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 13.06 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 13.07 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture,
the Company, shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need be
furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2)
a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of
such Person, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to
whether or not, in the opinion of such Person, such condition or covenant
has been complied with.
SECTION 13.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in
one or more indentures supplemental to this Indenture, in any case where
the date of maturity of interest or principal of any Security or the date
of redemption of any Security shall not be a Business Day, then payment of
interest or principal (and premium, if any) may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for
the period after such nominal date.
SECTION 13.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by Section 318(c) of
the Trust Indenture Act, such imposed duties shall control.
SECTION 13.10 Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
SECTION 13.11 Separability.
In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this Indenture or of such Securities, but this Indenture and such
Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 13.12 Assignment.
The Company will have the right at all times to assign any of
its rights or obligations under this Indenture to a direct or indirect
wholly-owned Subsidiary of the Company, provided that, in the event of any
such assignment, the Company, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and inures to the
benefit of the parties thereto and their respective successors and assigns.
This Indenture may not otherwise be assigned by the parties thereto.
ARTICLE XIV.
SUBORDINATION OF SECURITIES
SECTION 14.01 Subordination Terms.
The payment by the Company of the principal of and any premium
and interest on any series of Securities issued hereunder shall be
subordinated to the extent set forth in an indenture supplemental hereto
relating to such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above
written.
CHAMPION ENTERPRISES, INC.
By:
---------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:
---------------------------------
Name:
Title:
