Exhibit 4.1
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TRUST INDENTURE
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Dated as of August 1, 1998
between
XXXXXX & XXXXX CORPORATION, as Issuer
and
THE BANK OF NEW YORK, as Trustee
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Debt Securities
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Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
Trust Indenture Act Section Indenture
Section
Section 310(a)(1) 6.09
(a)(2) 6.09
(b) 6.10
Section 311(b)(4) 6.13
(b)(6) 6.13
Section 312(a) 7.01
(b) 7.02
(c) 7.02
Section 313(a) 7.03
(b)(2) 7.03
(c) 7.03
(d) 7.03
Section 314(a) 7.04
(c)(1) 1.02
(c)(2) 1.02
(e) 1.02
(f) 1.02
Section 316(a) (last sentence) 1.01
(a)(1)(A) 5.02, 5.12
(a)(1)(B) 5.13
(b) 5.08
Section 317(a)(1) 5.03
(a)(2) 5.04
(b) 10.03
Section 318(a) 1.07
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This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
NOTE: Section 318(c) of the Trust Indenture Act provides that the provisions of
Sections 310-317 are a part of and govern every qualified indenture, whether or
not physically contained therein.
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS......................................................................1
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.............................................9
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...........................................9
SECTION 1.04. ACTS OF HOLDERS.................................................................10
SECTION 1.05. NOTES, ETC. TO TRUSTEE AND COMPANY..............................................11
SECTION 1.06. NOTICE TO HOLDERS; WAIVER.......................................................11
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT...............................................12
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................................12
SECTION 1.09. SUCCESSORS AND ASSIGNS..........................................................12
SECTION 1.10. SEPARABILITY CLAUSE.............................................................12
SECTION 1.11. BENEFITS AND INDENTURE..........................................................12
SECTION 1.12. GOVERNING LAW...................................................................13
SECTION 1.13. LEGAL HOLIDAYS..................................................................13
SECTION 1.14. LANGUAGE OF NOTICES.............................................................13
SECTION 1.15. COUNTERPARTS....................................................................13
ARTICLE 2
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.................................................................13
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................................14
SECTION 2.03. GLOBAL SECURITIES...............................................................14
ARTICLE 3
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................................15
SECTION 3.02. DENOMINATIONS...................................................................19
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................................19
SECTION 3.04. TEMPORARY SECURITIES............................................................21
SECTION 3.05. REGISTRATION, TRANSFER AND EXCHANGE.............................................21
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES................................24
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED..................................25
SECTION 3.08. PERSONS DEEMED OWNERS...........................................................26
SECTION 3.09. CANCELLATION....................................................................27
SECTION 3.10. COMPUTATION OF INTEREST.........................................................27
SECTION 3.11. CUSIP NUMBERS...................................................................27
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.........................................28
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SECTION 4.02. APPLICATION OF TRUST MONEY......................................................29
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT...............................................................30
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............................31
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.................32
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM................................................33
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.....................34
SECTION 5.06. APPLICATION OF MONEY COLLECTED..................................................34
SECTION 5.07. LIMITATION ON SUITS.............................................................34
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST............................................................35
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES..............................................35
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE..................................................36
SECTION 5.11. DELAY OR OMISSION NOT WAIVER....................................................36
SECTION 5.12. CONTROL BY HOLDERS..............................................................36
SECTION 5.13. WAIVER OF PAST DEFAULTS.........................................................36
SECTION 5.14. UNDERTAKING FOR COSTS...........................................................37
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS................................................37
ARTICLE 6
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.............................................38
SECTION 6.02. NOTICE OF DEFAULTS..............................................................39
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.......................................................39
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..........................40
SECTION 6.05. MAY HOLD SECURITIES.............................................................41
SECTION 6.06. MONEY HELD IN TRUST.............................................................41
SECTION 6.07. COMPENSATION AND REIMBURSEMENT..................................................41
SECTION 6.08. INTENTIONALLY LEFT BLANK........................................................42
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.........................................42
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............................43
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................................45
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....................46
SECTION 6.13. PREFERENTIAL CLAIMS.............................................................46
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.............................................47
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.......................49
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SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..........................49
SECTION 7.03. REPORTS BY TRUSTEE..............................................................51
SECTION 7.04. REPORTS BY COMPANY..............................................................51
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS..................................52
SECTION 8.02. SUCCESSOR CORPORATION SUBSTITUTED...............................................53
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............................53
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................................54
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES............................................55
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES...............................................56
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.............................................56
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..............................56
ARTICLE 10
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS.............................................................56
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY................................................56
SECTION 10.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..............................57
SECTION 10.04. CORPORATE EXISTENCE............................................................59
SECTION 10.05. STATEMENT AS TO DEFAULT........................................................59
SECTION 10.06. ADDITIONAL AMOUNTS.............................................................59
SECTION 10.07. CALCULATION OF ORIGINAL ISSUE DISCOUNT.........................................60
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE.......................................................60
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................................60
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............................61
SECTION 11.04. NOTICE OF REDEMPTION...........................................................61
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE....................................................62
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE..........................................62
SECTION 11.07. SECURITIES REDEEMED IN PART....................................................63
ARTICLE 12
INTENTIONALLY LEFT BLANK
ARTICLE 13
DEFEASANCE AND COVENANT
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE..............................................63
SECTION 13.02. DEFEASANCE AND DISCHARGE.......................................................64
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SECTION 13.03. COVENANT DEFEASANCE............................................................64
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................................65
SECTION 13.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.........................................67
ARTICLE 14
SINKING FUNDS
SECTION 14.01. APPLICABILITY OF ARTICLE.......................................................68
SECTION 14.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES..........................68
SECTION 14.03. REDEMPTION OF SECURITIES FOR SINKING FUND......................................69
ARTICLE 15
SECURITIES IN FOREIGN CURRENCIES
SECTION 15.01. APPLICABILITY OF ARTICLE.......................................................69
SCHEDULE I Supplemental Indenture
EXHIBIT A Form of Debt Security
TRUST INDENTURE
INDENTURE, dated as of August 1, 1998 between Xxxxxx & Xxxxx
Corporation, a Tennessee corporation (the "COMPANY") and The Bank of New York, a
New York banking corporation, as trustee (the "TRUSTEE").
RECITALS
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior
unsecured debentures, bonds, notes or other evidences of indebtedness (herein
called the "SECURITIES"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided;
WHEREAS, the Company has duly authorized the execution and delivery of
this Indenture. All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done; and
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as otherwise herein expressly provided, the term "GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES" or "GAAP" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted in the United States of America as of the date of such computation; and
(d) the words "HEREIN," "hereof," "hereto" AND "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"ACT" when used with respect to any Holder, has the meaning specified
in Section 1.04.
"ADDITIONAL AMOUNTS" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities of one or more series.
"BOARD OF DIRECTORS" means the board of directors of the Company or any
duly authorized committee of the board of directors of the Company.
"BOARD RESOLUTION" means a copy of one or more resolutions certified by
the Secretary or 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, delivered to the Trustee.
"BUSINESS DAY" means any day other than Saturday, Sunday or other day
on which banking institutions in New York are authorized or obligated by law to
close.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"COMPANY" means Xxxxxx & Xxxxx Corporation or any successor Corporation
which shall have become such under this Indenture.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its President or any Vice President and
delivered to the Trustee.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be principally administered, which office at the date of original execution of
this Indenture is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CORPORATION" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"CURRENCY" with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP NUMBER" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"DEFAULTED INTEREST" has the meaning specified in Section 3.07.
"DEPOSITORY" means, with respect to the Securities of any series
issuable upon original issuance in whole or in part in the form of one or more
Global
Securities, the clearing agency registered under the Securities Exchange Act of
1934, as amended, specified for that purpose as contemplated by Section 3.01.
"DOLLARS" means a dollar or other equivalent unit of legal tender for
payment of debts in the United States of America.
"ECU" means the European Currency Units as defined and revised from
time to time by the Counsel of the European Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"EUROPEAN UNION" means the European Community, the European Coal
and Steel Community and the European Atomic Energy Community.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"FOREIGN CURRENCY" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States or by any recognized
confederation or association of such governments.
"GLOBAL SECURITY" means a Security bearing the legend specified in
Section 2.03 evidencing all or part of a series of Securities, issued to the
Depository with respect to such series or its nominee and registered in the name
of such Depository or nominee.
"GOVERNMENT OBLIGATIONS" means securities which are (x) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on any Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments, or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other governments or governments, in each case where the payment
or payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other governments or
governments, which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by a
bank as custodian with respect to any such Government Obligation or a specific
payment of principal of or interest on any such Government Obligation held by
such custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect to the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
each particular series of Securities established as contemplated by Section
3.01.
"INDEXED SECURITY" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST" with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.06, includes such
Additional Amounts.
"INTEREST PAYMENT DATE" with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"MATURITY" with respect to any Security, means the date on which the
principal of such Security, or an installment of principal, becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or repurchase or otherwise and
includes the Redemption Date.
"OFFICER'S CERTIFICATE" means a certificate signed by the President or
any Vice President of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or of counsel to the Company, or other counsel reasonably
satisfactory to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security issued pursuant
to this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration of the
Maturity pursuant to Section 5.02.
"OUTSTANDING" when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment at the Maturity thereof money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities; PROVIDED THAT, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(iii) Securities for whose payment or redemption money or Government
Obligations as contemplated by Section 13.10 in the necessary
amount have been theretofore deposited with the Trustee (or
another trustee satisfying the requirements of Section 6.09)
in trust for the Holders of such Securities in accordance with
Section 13.05; and
(iv) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be equal to the amount of the principal thereof that would be
due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 5.02, (B) the principal amount of any
Indexed Security that may be counted in making such determination and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
in this Indenture, (C) the principal amount of a Security denominated in a
Foreign Currency shall be the Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (A)
above) of such Security, and (D) Securities owned by the Company or any other
obligor or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor or any Affiliate of the Company or of
such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"PERSON" means any individual, Corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT" with respect to the Securities of any series, means
the place where the principal of (and premium, if any), interest on, and
Additional Amounts with respect to, the Securities of that series are payable as
provided in or pursuant to this Indenture or such Securities.
"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 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"REDEMPTION DATE" with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"REDEMPTION PRICE" with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or such Security.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified in or pursuant to
this Indenture or such Security as the "REGULAR RECORD DATE."
"RESPONSIBLE OFFICER" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of knowledge
of and familiarity with the particular subject.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture, PROVIDED, HOWEVER, that if at any time there is more than
one Person acting as Trustee under this Indenture, "SECURITIES" with respect to
any such Person shall mean securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on any
Security means a date fixed by the Trustee pursuant to Section 3.07.
"STATED MATURITY" with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts, means the date
established by or pursuant to this Indenture or such Security as the fixed date
on which the principal of such Security or such installment of principal or
interest is, or such Additional Amounts are, due and payable.
"SUBSIDIARY" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls, directly
or indirectly, more than 50% of the shares of voting stock. For the purposes of
this definition, "VOTING STOCK" means stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"TRUSTEE" shall mean or include each Person who is then a Trustee hereunder. If
at any time there is more than one such Person, "TRUSTEE" shall mean such Person
and as used with respect to the Securities of any series shall mean the Trustee
with respect to Securities of such series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05.
"VICE PRESIDENT" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "VICE PRESIDENT."
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise
expressly provided in this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture,
the Company shall furnish to the Trustee an Officer's Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with or an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of such documents or any of them is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Any Officer's
Certificate will comply with Section 314(e) of the Trust Indenture Act.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which the certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "ACT" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities of any
series any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, fix in advance a record date for the
determination of Holders of Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Any such record date shall be fixed at the
Company's discretion. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent and waiver or other Act may be sought
or given before or after the record date, but only the Holders of Securities of
record at the close of business on such record date shall be deemed to be
Holders of Securities for the purpose of determining whether Holders of the
requisite proportion of Securities of such series Outstanding have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Securities of such series
Outstanding shall be computed as of such record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
SECTION 1.05. NOTES, ETC. TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(a) the Trustee by any Holder or the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust Trustee
Administration; or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company at 0000 X&X
Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000, attention Vice President-Finance and
Treasurer (with a copy to the Vice President-General Counsel and Secretary), or
at any other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER. Where this Indenture or any
Security provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the Holder's address as it appears in the Security
Register, not later than the latest date, or not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given or
provided.
Where this Indenture or any Security provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
SECTION 1.08. 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 1.09. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. BENEFITS AND INDENTURE. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 1.13. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) or any Additional Amounts need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, and no interest shall accrue with
respect to such payments for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be, to the next
succeeding Business Day.
SECTION 1.14. LANGUAGE OF NOTICES. Any request, demand, authorization,
direction, notice, consent, election or waiver required or permitted under this
Indenture shall be in the English language, except that, if the Company so
elects, any published notice may be in an official language of the country of
publication.
SECTION 1.15. COUNTERPARTS. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE 2
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY. The Securities of each series shall be
in substantially the form attached hereto as Exhibit A as shall be established
by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution of the
Securities.
If any form of Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or Assistant Secretary of the Company and
delivered to the Trustee at the same time as or prior to the delivery of the
Company Order contemplated by Section 3.03 for the authentication and delivery
of such Securities.
The definitive Securities may be produced in any manner determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without coupons
and shall not be issuable upon the exercise of warrants.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. This is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Authorized Signatory
SECTION 2.03. GLOBAL SECURITIES. Unless otherwise provided in or
pursuant to this Indenture or any Securities, the Securities shall be issued in
global form. Any such Security may provide that it or any number of such
Securities shall represent the aggregate amount of all Outstanding Securities of
such series (or such lessor amount as is permitted by the terms thereof) from
time to time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased or
reduced to reflect exchanges. Any endorsement of any Security in global form to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person as shall be specified therein or in the Company Order
to be delivered pursuant to Section 3.03 or 3.04 with respect thereto.
Subject to the provisions of Section 3.03 and, if applicable, Section
3.04, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person specified therein
or in the applicable Company Order. If a Company Order pursuant to Section 3.03
or 3.04 has been, or simultaneously is, delivered, any instructions by the
Company with respect to a Security in global form shall be in writing but need
not be accompanied by or contained in an Officer's Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.07, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in global form shall be made to the Person specified therein.
Notwithstanding the provisions of Section 3.08 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder, the holder of such global
Security in registered form.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depository or a nominee of a Depository. This
Security is exchangeable for Securities registered in the name
of a Person other than the Depository or its nominee only in
the limited circumstances described in the Indenture, and no
transfer of this Security (other than a transfer of this
Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository) may be registered except
in such limited circumstances."
ARTICLE 3
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and (subject to Section 3.03)
set forth in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series (subject
to the last paragraph of this Section 3.01).
(a) the title of the Securities and the series in which such
Securities shall be included (which shall distinguish the Securities of the
series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which,
pursuant to Section 3.03 are deemed never to have been authenticated and
delivered hereunder);
(c) the date or dates on which the principal of the Securities of the
series is payable;
(d) the Person to whom any interest on any Security of the series
shall be payable if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, the rate or rates, which may be fixed or
variable, at which the Securities of the series shall bear interest, if any, if
the rate is variable, the manner of calculation thereof, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest payable
on any Interest Payment Date;
(e) the place or places where the principal of (and premium, if any)
and interest, if any, on Securities of the series shall be payable;
(f) the date or dates on which, the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company;
(g) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the date or dates on which, the period or
periods within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation and any provisions for the remarketing of
such securities so redeemed or purchased;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(i) 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 5.02 or the method by
which such portion is to be determined;
(j) the application, if any, of either or both of Section 13.02 and
Section 13.03 to the Securities of the series;
(k) if other than Dollars, the Foreign Currency in which payment of
the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(l) if the principal of (and premium, if any) or interest, if any, on
the Securities of that series are to be payable, at the election of the Company
or a Holder thereof, in a currency (including a composite currency) other than
that in which the Securities are stated to be payable, the date or dates on
which, the period or periods within which, and the terms and conditions upon
which, such election may be made;
(m) if the amount of payments of principal of (and premium if any) or
interest, if any, on the Securities of the series may be determined with
reference to an index, formula or other method or methods based on a currency
(including a composite currency) other than that in which the Securities are
stated to be payable, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(n) if the amount of payments of principal of, any premium or interest
on the Securities of the series may be determined with reference to an index,
the manner in which such amounts shall be determined;
(o) whether any Securities of the series are to be issuable upon
original issuance in the form of one or more Global Securities and, if so, (i)
the Depository with respect to such Global Security or Securities and (ii) the
circumstances under which any such Global Security may be exchanged for
Securities registered in the name of, and any transfer of such Global Security
may be registered to, a Person other than such Depository or its nominee, if
other than as set forth in Section 3.05;
(p) whether and under what circumstances Additional Amounts on such
Securities or any of them shall be payable;
(q) the notice, if any, to Holders regarding the determination of
interest on a floating rate Security and the manner of giving such notice, and
the basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(r) intentionally left blank;
(s) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to any Securities, whether or
not such Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(t) if any of such Securities are to be issuable in global form and
are to be issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form and terms of
such certificates,
documents or conditions;
(u) if there is more than one Trustee, the identity of the Trustee
and, if not the Trustee, the identity of each Security Registrar, Paying Agent
or Authenticating Agent with respect to such Securities; and
(v) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) and any deletions from or
modifications or additions to this Indenture in respect of such series.
All Securities of any one series shall be substantially identical
except as to denomination, currency, rate of interest, or method of determining
the rate of interest, if any, Maturity, and the date from which interest, if
any, shall accrue and except as may otherwise be provided in or pursuant to such
Board Resolution referred to above and (subject to Section 3.03) set forth in
the Officer's Certificate referred to above or in any indenture supplemental
hereto. If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of the Board Resolution shall be
delivered to the Trustee at the same time as or prior to the delivery of the
Officer's Certificate setting forth the terms of the series.
Notwithstanding any contrary terms of this Section 3.01, the terms of
the Securities of any series may provide, without limitation, that the
Securities shall be authenticated and delivered by the Trustee on original issue
from time to time upon telephonic or written order of Persons designated in the
Officer's Certificate or supplemental indenture and that such Persons are
authorized to determine, consistent with such Officer's Certificate or any
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such certificate or supplemental indenture. All
Securities of any one series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
SECTION 3.02. DENOMINATIONS. Unless otherwise provided in or pursuant
to this Indenture, the principal of, any premium and interest on and any
Additional Amounts with respect to the Securities shall be payable in Dollars.
The Securities of each series shall be issuable only in fully registered form
without coupons in such denominations as shall be specified pursuant to Section
3.01. In the absence of any such provision with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof. Securities not denominated in Dollars
shall be issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be executed on behalf of the Company by its President or any
Vice President, under its corporate seal reproduced thereon attested by its
Secretary or Assistant Secretary. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were the proper officers of the Company when their signatures were affixed
to such Securities shall bind the Company, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make such Securities available for
delivery. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions or indentures
supplemental hereto as permitted by Sections 2.01 and 3.01, in authenticating
such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying upon:
(a) an Opinion of Counsel to the effect that:
(i) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 2.01, that such form has
been established in conformity with the provisions of this Indenture;
(ii) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such
terms have been established in conformity with the provisions of this
Indenture;
(iii) this Indenture has been qualified under the Trust Indenture Act;
and
(iv) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles and will entitle the Holders thereof to the
benefits of this Indenture; and
(b) an Officer's Certificate stating that, to the best knowledge of the
Person executing such certificate, no event which is, or after notice or lapse
of time would become, an Event of Default with respect to any of the Securities
shall have occurred and be continuing.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it
shall not be necessary to deliver an Opinion of Counsel, Officer's Certificate
or the Company Order otherwise required at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the time of authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by, or on behalf of, the Trustee or by the Authenticating Agent by
manual signature. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
The Trustee shall not be required to authenticate or to cause an
Authentication Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
SECTION 3.04. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute and deliver to the
Trustee, and, upon Company Order, the Trustee shall authenticate and make
available for delivery in the manner provided in Section 3.03, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers of the Company executing such Securities may determine, as evidenced by
their execution of such Securities. Such temporary Securities may be in global
form.
If temporary Securities of any series are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
at the office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series and of like tenor
of authorized denomination containing terms and provisions that are identical to
those of any temporary Securities. Until so exchanged the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series.
SECTION 3.05. REGISTRATION, TRANSFER AND EXCHANGE. The Company shall
cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company in a
Place of Payment being herein sometimes collectively referred to as the
"SECURITY REGISTER") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "SECURITY REGISTRAR"
for the purpose of registering Securities and transfers of Securities as herein
provided.
The Company shall have the right to remove and replace from time to
time the Security Registrar for any series of Securities; PROVIDED THAT no such
removal or replacement shall be effective until a successor Security Registrar
with respect to such series of Securities shall have been appointed by the
Company and shall have accepted such appointment by the Company. In the event
that the Trustee shall not be or shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for such
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor containing identical terms
and provisions.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series containing identical terms and
provisions in any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or the Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
Except as otherwise provided herein, the Company shall not be required
(i) to issue, register the transfer of or exchange Securities of any series
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities of such series selected for
redemption under Section 11.03 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any Global Security of any series shall be
exchangeable for definitive Securities only if: (i) such Depository is
unwilling, unable or ineligible to continue as Depository with respect to such
Global Security and a successor depository is not appointed by the Company
within 90 days or if at any time the Depository with respect to such Global
Security ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, or (ii) the Company executes and delivers to the
Trustee a Company Order providing that such Global Security shall be so
exchangeable and the transfer thereof so registrable.
If the beneficial owners of interests in a Global Security are entitled
to exchange such interests for definitive Securities as the result of an event
described in the preceding sentence, then without unnecessary delay but in any
event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
such form and denominations as are required by or pursuant to this Indenture,
and of the same
series, containing identical terms and in aggregate principal amount equal to
the principal amount of such Global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such Global
Security shall be surrendered from time to time by the Depository and in
accordance with instructions given to the Trustee and the Depository (which
instructions shall be in writing but need not be contained in or accompanied by
an Officer's Certificate or be accompanied by an Opinion of Counsel), as shall
be specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities as described above without charge.
The Trustee shall authenticate and make available for delivery, in
exchange for each portion of such surrendered Global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such Global Security to be
exchanged, which shall be in the form of Securities, as shall be specified by
the beneficial owner thereof, PROVIDED, HOWEVER, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of the same series to be redeemed and ending at the
close of business on the day of the mailing of a notice of redemption of
Securities.
Promptly following any such exchange in part, such global Security
shall be returned by the Trustee to such Depository in accordance with the
instructions of the Company referred to above. If a Security is issued in
exchange for any portion of a Global Security after the close of business at the
office or agency for such Security where such exchange occurs on or after (i)
any Regular Record Date for such Security and before the opening of business at
such office or agency on the next Interest Payment Date, or (ii) any Special
Record Date for such Security and before the opening of business at such office
or agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Security, but shall be payable on such Interest Payment Date or proposed
date for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such Global Security shall be payable in accordance
with the provisions of this Indenture.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If (a)
any mutilated Security is surrendered to the Trustee or if there shall be
delivered to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of any Security and (b) there shall be delivered to
the Company and the Trustee such indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and
make available for delivery, in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of the same series containing identical terms
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute a separate
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture, are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Unless
otherwise provided as contemplated by Section 3.01 with respect to any series of
Securities, interest on and any Additional Amounts with respect to any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest.
Any interest on, and any Additional Amounts with respect to, any
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "DEFAULTED INTEREST")
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Security of such series and
the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment. Such money when deposited will be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at the
Holder's address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Securities may be paid by
mailing a check to the address of the Person entitled thereto as such address
shall appear in the Security Register or by transfer to an account maintained by
the payee with a bank located in the United States.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 3.05 and 3.07)
interest on and any Additional Amounts with respect to such Security and for all
other purposes whatsoever, whether or not any payment with respect to such
Security shall be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such Global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
SECTION 3.09. CANCELLATION. All Securities surrendered for payment,
redemption, registration of transfer, exchange or for credit against any sinking
fund payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever and may deliver to the Trustee (or to an Authenticating Agent
for delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of as directed by a
Company Order, provided, however, that the Trustee shall not be required to
destroy such canceled Securities.
SECTION 3.10. COMPUTATION OF INTEREST. Except as otherwise specified
pursuant to Section 3.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 3.11. CUSIP NUMBERS. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
PROVIDED that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to rights of
registration of transfer or exchange of Securities), and the Trustee on receipt
of the Company Request, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when:
(a) either
(i) all Securities of such series theretofore authenticated and
delivered (other than (A) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06 and (B) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have been
delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company, and the Company, in the case of (A), (B) or (C)
above, has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
and any Additional Amounts to the date of such deposit (in the
case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be.
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's Certificate
or an Opinion of Counsel, stating that all conditions precedent herein relating
to the satisfaction and discharge of this Indenture with respect to such
Securities have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of any series, the obligations of the Company to the
Trustee under Section 6.07, the obligations of the Company to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (ii) of clause (a) of this Section, the
obligations under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, and the obligation
to pay Additional Amounts, if any, with respect to such Securities as
contemplated by Section 10.06 (but only to the extent that any Additional
Amounts payable with respect to such Securities exceed the amount deposited in
respect of such Additional Amounts pursuant to Section 4.01(a)(ii)), shall
survive.
SECTION 4.02. APPLICATION OF TRUST MONEY. Subject to the provisions of
the penultimate paragraph of Section 10.03, all money and Government Obligations
deposited with the Trustee pursuant to Section 4.01 and Article 13 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
of the series for which such deposit was made and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), interest and
Additional Amounts for whose payment such money and Government Obligations has
been deposited with the Trustee; but such money and Government Obligations need
not be segregated from other funds except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. "EVENT OF DEFAULT," wherever used
herein with respect to the Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any
administrative or governmental body), unless such event is specifically deleted
or modified in or pursuant to the supplemental indenture, Board Resolution or
Officer's Certificate establishing the terms of such series pursuant to this
Indenture:
(a) default in the payment of any interest upon any Security of such
series when it becomes due and payable, and continuance of such default for a
period of 30 days;
(b) default in the payment of the principal of (or premium, if any,
on) any Security of such series at its Maturity;
(c) default in the performance, or breach, of any covenant, agreement
or warranty of the Company in this Indenture (other than a covenant, agreement
or warranty a default in whose performance is elsewhere in this Section
specifically dealt with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than such series) and
continuance of such default for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 50% in principal amount of the
Outstanding Securities of such series a written notice specifying such default
and requiring it to be remedied and stating that such notice is a "NOTICE OF
DEFAULT" hereunder;
(d) default in the deposit of any sinking fund payment when and as due
by the terms of a Security of such series;
(e) the entry by a court having jurisdiction of a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under federal bankruptcy law or any other applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days;
(f) the commencement by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under federal bankruptcy law or any
other applicable federal or state law, or the consent by it to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part of
its property, or the making by it of a general assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(g) any other Event of Default provided pursuant to Section 3.01 with
respect to Securities of such series.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in the Event of Default described in
Section 5.01, clauses (a), (b), (c), (d) and (g) above, the Trustee or the
Holders of not less than 50% in principal amount of the Outstanding Securities
of such series may declare the principal amount of all the Securities of such
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount shall become immediately due and payable. If an Event of
Default specified in clauses (e) or (f) of Section 5.01 hereof occurs, the
principal amount of all Outstanding Securities of each series shall become due
and payable without any declaration or other act on the part of the Trustee or
the Holders of Securities of any series.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before the Stated Maturity thereof,
the Holders of a majority in principal amount of the Outstanding Securities of
such series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on and any Additional Amounts
with respect to all Securities of such series;
(ii) the principal of (and premium, if any, on) any Securities of such
series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities
of such series and any Additional Amounts;
(iii) to the extent that payment of such interest or Additional Amounts
is lawful, interest upon overdue interest or Additional Amounts at the
rate borne by the Securities of such series; and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default with respect to the Securities of such
series, other than the non-payment of the principal of Securities of such series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
(a) default is made in the payment of any interest on any Securities
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Securities at the Maturity thereof, the Company will, upon demand
of the Trustee, pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for
principal (and premium, if any) and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate borne by the
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sum so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of the Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal (and premium, if any) or interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest and Additional Amounts owing and unpaid in
respect of the Securities and to file such other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 5.06. APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any), interest or Additional
Amounts, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.07;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), interest and Additional
Amounts on the Securities in respect of which or for the
benefit of which such money has been collected, ratably,
without preference
or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if
any), interest and Additional Amounts, respectively; and
Third: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
SECTION 5.07. LIMITATION ON SUITS. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of not less than 50% in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceedings; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series.
It being understood and intended that no one or more Holders of
Securities shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
right of any other such Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders of Securities.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any, on)
and (subject to Section 3.07) interest on, and any Additional Amounts with
respect to, such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment and such rights shall not
be impaired without the consent of such Holder.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 5.12. CONTROL BY HOLDERS. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture or with such Securities;
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(c) subject to Section 6.01, the Trustee need not take any action
which might be prejudicial to the Holders of such series not consenting.
SECTION 5.13. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default
hereunder with respect to such series and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Article 9
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect to
such series, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security on
or after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except during
the
continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such duties
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 its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct; except that:
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of
any default hereunder with respect to the Securities of any series, the
Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; PROVIDED, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Security,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and PROVIDED, FURTHER, that in the case of any default of the character
specified in Section 5.01(c) with respect to the Securities of such series no
such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "DEFAULT" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
Section 6.01:
(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, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee indemnity satisfactory to it against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights of powers conferred upon it by
this Indenture; and
(i) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assume no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Section 6.13, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. MONEY HELD IN TRUST. Except as otherwise provided herein,
money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as shall
be agreed in writing from time to time between the Company and the Trustee for
all services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, liability, damage, claim or
expense, including taxes (other than taxes based on the income of the Trustee)
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim, whether asserted by the Company, or any Holder or any other Person, or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent that any such loss, liability, damage,
claim or expense was due to the Trustee's negligence or bad faith.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.07, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or tenders services in connection with
an Event of Default specified in Section 5.01(e) or Section 5.01(f), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.08. INTENTIONALLY LEFT BLANK.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. (a) There shall
at all times be a Trustee hereunder which shall:
(i) be a Corporation organized and doing business under the laws of
the United States of America, any State thereof or the District of
Columbia authorized under such laws to exercise corporate trust powers;
(ii) be eligible under Section 310(a) of the Trust Indenture Act to act
as
trustee under an indenture qualified under the Trust Indenture Act; and
(iii) have a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal or state authority.
If such Corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
(b) The following Indenture shall be considered specifically described
herein for purposes of clause (i) of the proviso contained in Section 310(b)(1)
of the Trust Indenture Act:
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may at the expense of the Company
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by the Company or by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered to
the Trustee, and to the Company in the case of an Act of the Holders. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(d) If at any time:
(i) the Trustee shall fail to comply with the obligations imposed upon
it under Section 310(b) of the Trust Indenture Act with respect to the
Securities after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months;
(ii) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or
by any such
Holder; or
(iii) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(A) the Company may remove the Trustee with respect to all Securities
or the Securities of such series, or (B) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of such Holder and all other similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the
appointment of a successor Trustee.
(iv) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the
Company shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those Series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series).
If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of 75% in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and supersede the successor Trustee
appointed by the Company.
If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(v) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall
include the
name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of
the appointment hereunder of a successor Trustee with respect to all Securities,
every successor Trustee appointed hereunder 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,
(i) 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,
(ii) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary
or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and
(iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee.
It being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
Upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such a acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. 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 all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. PREFERENTIAL CLAIMS. Reference is made to Section 311 of
the Trust Indenture Act. For purposes of Section 311(b)(4) and (6) of such Act:
(i) "CASH TRANSACTION" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand; and
(ii) "SELF-LIQUIDATING PAPER" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise
and which is secured by documents evidencing title to, possession of,
or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing,
negotiating or incurring of
the draft, xxxx of exchange, acceptance or obligation.
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any
of the Securities remain Outstanding the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issuance, exchange, registration of transfer or
partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in the Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a Corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided that such Corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30 days'
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the provision
of this Section, the Trustee may appoint a successor Authenticating Agent which
shall be acceptable to the Company and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provision of
this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
------------------------------------
As Authenticating Agent
By
------------------------------------
Authorized Signatory
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Company will furnish or cause to be furnished to the Trustee with
respect to the Securities of each series:
(a) semi-annually, not later than each Interest Payment Date for such
series (or, in the case of any series not having semi-annual Interest Payment
Dates, semi-annually, not later than the dates determined pursuant to Section
3.01
for such series) a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of the preceding Regular Record Date
(or as of such other date determined pursuant to Section 3.01 for such series)
therefor, 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 so long as the Trustee is the Security
Registrar no such list shall be required to be furnished.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of the Securities of each series
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of such Holders received by the Trustee
in its capacity as Security Registrar. The Trustee may destroy any list of the
Holders of Securities of any series furnished to it as provided in Section 7.01
upon receipt of a new list of such Holders.
(b) If three or more Holders of Securities of any series (herein
referred to as "APPLICANTS") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series with respect to
their rights under this Indenture or under the Securities of such series and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a) with respect to
the Securities of such series, or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with
Section 7.02(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities of such series whose name and address appear
in the information preserved at the time by the Trustee in accordance with
Section 7.02(a) a copy of the form or proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 7.02(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 7.02(b).
SECTION 7.03. REPORTS BY TRUSTEE.
(a) Within 60 days after July 15 of each year commencing with the year
1999, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, such brief report dated as of such
July 15, if any, as may be required by Section 313(a) of the Trust Indenture
Act.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange, or of any delisting thereof.
SECTION 7.04. REPORTS BY COMPANY. The Company shall:
(a) notify the Trustee, within 15 days after the Company has filed
with the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 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) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and addresses
appear in 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 paragraphs (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by the
Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS. Nothing
contained in this Indenture or in any of the Securities shall prevent any
consolidation or merger of the Company with or into any other Person, or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Company as an entirety or substantially
as an entirety, to any Person, PROVIDED THAT:
(a) in case the Company shall consolidate with or merge into another
Corporation or convey, transfer or lease its properties and assets as, or
substantially as, an entirety to any Person, the Corporation formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer, or lease the properties and assets of the Company, as,
or substantially as, an entirety shall be a Corporation organized and existing
under the laws of the United States of America, any state thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if any),
interest on and
any Additional Amounts with respect to all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction, no Event of
Default, or event which after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 8.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation
by the Company with or merger by the Company into any other Corporation or any
conveyance, transfer or lease of the properties and assets of the Company as, or
substantially as, an entirety to any Person in accordance with Section 8.01, the
successor Corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Corporation has
been named as the Company herein, and thereafter, except in the case of a lease
to another Person, the predecessor Corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities;
(b) 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;
(c) to add any additional Events of Default with respect to Securities
of any or all series;
(d) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
(e) to secure the Securities of any or all series;
(f) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of the
Holders of Securities of any series in any material respect;
(g) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons;
(h) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01;
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11(b);
(j) 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;
(k) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article 13, provided that no
such supplement shall materially adversely affect the interest of the Holders of
any Securities then Outstanding; or
(l) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interest of the Holders of any Securities then
Outstanding.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any such Security, or reduce the principal amount thereof or any
interest thereon or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or change any Place of Payment where, or the currency
in which, any such Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date);
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of those Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture; or
(c) modify any of the provisions of this Section or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or the provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE 10
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
with respect to the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of such series may be presented or surrendered for
registration or transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of such series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 10.03. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If
the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of or
interest on any Securities of such series, deposit with a Paying Agent a sum
sufficient to pay the principal (or premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company hereby designates the Trustee as the initial Paying Agent.
Whenever the Company shall appoint a Paying Agent other than the Trustee, it
will cause such Paying Agent for any series of Securities to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal (and premium, if any) or interest on the Securities of such series;
and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee (or another trustee satisfying the requirements of Section 6.09)
in respect of Government Obligations deposited with the Trustee (or such other
trustee) pursuant to Section 13.04, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or interest on any
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust. The Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
The Trustee or such Paying Agent, before being required to make any
such repayment, may, at the expense of the Company publish, in the English
language, in a newspaper customarily published on each Business Day and of
general circulation in the City of New York, New York, or to be mailed to such
Holder or both, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the earlier of the
date of such publication or such mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 10.04. CORPORATE EXISTENCE. Subject to Article 8, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the foregoing shall not obligate the Company
to preserve any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material respect to any
Holder.
SECTION 10.05. STATEMENT AS TO DEFAULT. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, an Officer's
Certificate, stating as to each signer thereof that he or she is familiar with
the affairs of the Company and whether or not to such officer's knowledge the
Company is in
compliance (without regard to any period of grace or requirement of notice) with
all conditions and covenants of this Indenture. The officer executing such
certificate shall be the Company's principal executive, financial or accounting
officer and such certificate need not comply with Section 314(e) of the Trust
Indenture Act.
SECTION 10.06. ADDITIONAL AMOUNTS. If any Securities of a series
provide for the payment of Additional Amounts, the Company agrees to pay to the
Holder of any such Security Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
by the terms of such series established hereby or pursuant hereto to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officer's Certificate, the Company
shall furnish to the Trustee and the Paying Agent, if other than the Trustee, an
Officer's Certificate instructing the Trustee and such Paying Agent whether such
payment of principal of an premium, if any, or interest on the Securities of
such series shall be made to Holders of Securities of such series who are United
States aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of such series. If any
such withholding shall be required, then such Officer's Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities, and the Company agrees to pay to the Trustee or
such Paying Agent the Additional Amounts required by the terms of such
Securities.
SECTION 10.07. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company
shall file with the Trustee promptly at the end of each calendar year (a) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Securities as of the end of
such year and
(b) such other specific information relating to such original issue discount as
may then be relevant under the Internal Revenue Code of 1986, as amended from
time to time.
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified pursuant to Section 3.01 for
Securities of any series) in accordance with this Article.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE. In case of any
redemption of Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed and, if
applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series are to be redeemed (unless all of the
Securities of a specified tenor are to be redeemed), the particular Securities
to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Securities of such series subject to
such redemption and not previously called for redemption, PRO RATA, by lot or by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series and tenor or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.04. NOTICE OF REDEMPTION. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed. Failure to give notice by mailing in the manner herein provided to the
Holder of any Securities designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other Securities or portion thereof.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of any Series and
tenor are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be redeemed;
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest thereon
will cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the case;
(g) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed; and
(h) the CUSIP Number or the Euroclear or the Cedel Bank reference
numbers of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
Notice of redemption of Securities to be redeemed shall be given by the
Company or, on Company Request, by the Trustee at the expense of the Company.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE. On or before 10:00 a.m.,
New York City time, any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; PROVIDED, HOWEVER,
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Regular or Special Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 11.07. SECURITIES REDEEMED IN PART. Any Security which is to be
redeemed only in part shall be surrendered at an office or agency of the Company
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or the Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
If a Global Security is so surrendered, the Company shall execute, and
the Trustee shall authenticate and deliver to the Depository, without service
charge, a new Global Security in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Global Security so surrendered.
ARTICLE 12
INTENTIONALLY LEFT BLANK
ARTICLE 13
DEFEASANCE AND COVENANT
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 3.01 provision is made
for either or both of (a) defeasance of the Securities of a series under Section
13.02 or (b) covenant defeasance of the Securities of a series under Section
13.03 to apply to Securities of any series, then the provisions of such Section
or Sections, as the case may be, together with the other provisions of this
Article 13, shall be applicable to the Securities of such series, and the
Company may at its option, at any time, with respect to the Securities of such
series, elect to have either Section 13.02 (if applicable) or Section 13.03 (if
applicable) be applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article 13.
SECTION 13.02. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the above option applicable to this Section, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding Securities
of such series on the date the conditions set forth below are satisfied
(hereinafter, "DEFEASANCE").
For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 13.04 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on and Additional Amounts, if any, with respect
to, such Securities when such payments are due;
(b) the Company's obligations with respect to such Securities under
Sections 3.04, 3.05, 3.06, 6.07, 10.02, 10.03 and 10.06 (but only to the extent
that any Additional Amounts payable exceed the amount deposited in respect of
such Additional Amounts pursuant to Section 13.04(a) below);
(c) the rights, powers, trusts, duties and immunities and other
provisions in respect of the Trustee hereunder; and
(d) this Article 13.
Subject to compliance with this Article 13, the Company may exercise
its option under this Section 13.02 notwithstanding the prior exercise of its
option under Section 13.03 with respect to the Securities of such series.
SECTION 13.03. COVENANT DEFEASANCE. Upon the Company's exercise of the
above option applicable to this Section, the Company shall be released from its
obligations under Sections 8.01, 10.05, 5.01(c) (as to Sections 8.01 and 10.05),
5.01(e), 5.01(f) and 5.01(g) (if Section 5.01(g) is specified as applicable to
the Securities of such series) with respect to the Outstanding Securities of
such series on and after the date the conditions set forth below are satisfied
(hereinafter, "COVENANT DEFEASANCE").
For this purpose, such covenant defeasance means that, with respect to
the Outstanding Securities of such series, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Following a covenant defeasance, payment of the Securities of such series may
not be accelerated because of an Event of Default specified above in this
Section 13.03.
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 13.02 or
Section 13.03 to the Outstanding Securities of such series.
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.09 who shall agree to comply with the provisions of this Article 13
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (i) an amount in Dollars or
in such Foreign Currency in which such Securities are then specified as payable
at Stated Maturity, or (ii) Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, on the due date of any payment, money in an amount, or (iii)
a combination thereof, sufficient, without reinvestment, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (A) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Stated Maturity of such principal
or installment of principal or interest and (B) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities of such
series on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities. Before such a deposit, the
Company may make arrangements
satisfactory to the Trustee for the redemption of any series of Securities at a
future date in accordance with any redemption provisions contained in the
Supplemental Indenture relating to such series, which shall be given effect in
applying the foregoing.
(b) No Event of Default or event with which notice of lapse of time or
both would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such deposit and,
with respect to defeasance only, at any time during the period ending on the
123rd day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance shall not cause the Trustee
for the Securities of such series to have a conflicting interest for purposes of
the Trust Indenture Act with respect to any securities of the Company.
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by which it is
bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be deleted.
(f) In the case of an election under Section 13.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of this Indenture there has been a change in
the applicable federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred.
(g) In the case of an election under Section 13.03, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 3.01.
(i) The Company shall have delivered to the Trustee an Officer's
Certificate or an Opinion of Counsel, stating that all conditions precedent
provided for in the Indenture relating to either the defeasance under Section
13.02 or the covenant defeasance under Section 13.03 (as the case may be) have
been complied with.
SECTION 13.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 13.03, all money and Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 13.05, the "TRUSTEE") pursuant to
Section 3.10 in respect of the Outstanding Securities of such series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any Paying Agent (but not including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal (and premium, if any) and
interest and Additional Amounts, if any, but such money need not be segregated
from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Security, if after a deposit referred in Section 13.02 has been made, (a) Holder
of a Security in respect of which such deposit was made is entitled to, and
does, elect pursuant to Section 3.01 or the terms of such Security to receive
payment in a Currency other than that in which the deposit pursuant to Section
13.02 has been made in respect of such Security, or (b) a Conversion Event
occurs in respect of the Foreign Currency in which the deposit pursuant to
Section 13.02 has been made, the indebtedness represented by such Security shall
be deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (i) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (ii) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 13.04 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Securities of such series.
Anything in this Article 13 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
13.04 which, in the opinion of a nationally recognized firm of independent
public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
ARTICLE 14
SINKING FUNDS
SECTION 14.01. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise permitted or required in or pursuant to this
Indenture or any Security of such series issued pursuant to this Indenture.
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 such 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 14.02. 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 and this Indenture.
SECTION 14.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company may (a) deliver Outstanding Securities of a series (other than any
of such Securities previously called for redemption) and (b) apply as a credit
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such series of 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 required to be made pursuant to the terms of such Securities, as
provided by the terms of such Securities, 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
required sinking fund payment shall be reduced accordingly.
SECTION 14.03. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
75 days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officer's Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for such series
pursuant to the terms of such series, the portion thereof, if any, which is to
be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 14.02,
and the optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, hereof and will also deliver to the Trustee any
Securities to be so delivered. Not less than 45 days prior to 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 11.03 and
cause notice of the redemption thereof to be given the name of and at the
expense of the Company in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE 15
SECURITIES IN FOREIGN CURRENCIES
SECTION 15.01. APPLICABILITY OF ARTICLE. Whenever this Indenture
provides for (a) any action by, or the determination of any of the rights of,
Holders of Securities of any series in which not all of such Securities are
denominated in the same Currency, or (b) any distribution to Holders of
Securities, in the absence of any provision to the contrary in this Indenture or
the Securities, any amount in respect of any Security denominated in a Currency
other than Dollars shall be treated for any such action or distribution as that
amount of Dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Securities of such
series (if any) for such action, determination of rights or distribution (or, if
there shall be no applicable record date, such other date reasonably proximate
to the date of such action, determination of rights or distribution) as the
Company may specify in a written notice to the Trustee or, in the absence of
such written notice, as the Trustee may determine.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
XXXXXX & XXXXX CORPORATION,
Issuer
By /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice-President - Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Assistant Vice President
SCHEDULE I
[FORM OF SUPPLEMENTAL INDENTURE]
XXXXXX & XXXXX CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
-------------------------------------------------------------------------------
Supplemental Indenture
No. __
Dated as of _____________, ______
-------------------------------------------------------------------------------
___% Notes due __________________, ______
SUPPLEMENTAL INDENTURE NO. ___, dated as of __________, _____ between
Xxxxxx & Xxxxx Corporation, a Tennessee Corporation (the "COMPANY") and The Bank
of New York, a New York banking corporation (herein called the "TRUSTEE") as
Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company and the Trustee have executed and delivered an Indenture
dated as of August 1, 1998, as amended or supplemented (the "INDENTURE") to
provide for the issuance from time to time of the Company's Securities.
Sections 2.01 and 3.01 of the Indenture provide that the form and terms
of Securities of any series may be established pursuant to an indenture
supplemental to the Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and under the Indenture and
duly issued by the Company and to make this Supplemental Indenture No. ___ a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, this Indenture WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders hereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the holders of the Securities of the series
hereby established, as follows:
ARTICLE 1
RELATION TO THE INDENTURE; DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 1.01. RELATION TO THE INDENTURE. This Supplemental Indenture
No. ___ constitutes an integral part of the Indenture.
SECTION 1.02. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.
For all purposes of this Supplemental Indenture No. ___ unless otherwise
specified herein:
(a) all terms defined in this Indenture which are used and not
otherwise
defined herein shall have the meanings they are given in the Indenture; and
(b) the provisions of general application stated in Section 1.01 of
the Indenture shall apply to this Supplemental Indenture No. __, except that the
words "HEREIN," "HEREOF," "HERETO" and "HEREUNDER" and other words of similar
import refer to this Supplemental Indenture as a whole and not to the Indenture
or any particular Article, Section or other subdivision of the Indenture or this
Supplemental Indenture No. ___.
ARTICLE 2
THE SERIES OF NOTES
SECTION 2.01. TITLE. There shall be a series of Securities designated
the "___% Notes due __________, __________" (the "NOTES").
SECTION 2.02. PRINCIPAL AMOUNT. The aggregate principal amount of the
Notes which may be authenticated and delivered under this Supplemental Indenture
shall not exceed $__________ (except for Notes which may be authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the
Indenture).
SECTION 2.03. MATURITY. The date on which the principal of the Notes
shall be payable shall be __________.
SECTION 2.04. INTEREST. [The Notes shall bear interest at the rate of [
]% per annum. Interest shall accrue from __________, _____ or from the most
recent Interest Payment Date to which interest has been paid or provided for.
Accrued interest shall be payable on _________, _____ and on each _____ and
_____ thereafter, to the persons in whose names the Notes are registered at the
close of business on the preceding _____ or _____, as the case may be.]
[Insert other interest provisions if necessary]
SECTION 2.05. PLACE OF PAYMENT. [The Place of Payment for the Notes
shall be at the Corporate Trust office of the Trustee at ____________ or such
other office of the Paying Agent as the Paying Agent may reasonably request by
notice to the Company and the Trustee (if the Paying Agent is not the Trustee).
SECTION 2.06. REDEMPTION.
[Insert redemption terms]
The provisions of Article 13 of the Indenture [shall/shall not] apply
to the
Notes.
SECTION 2.07. INTENTIONALLY LEFT BLANK.
SECTION 2.08. FORM OF NOTES. The Notes shall be in the form of Exhibit
A attached hereto.
SECTION 2.09. CURRENCY.
[Insert currency terms.]
SECTION 2.10. SINKING FUNDS.
[Insert sinking fund terms.]
SECTION 2.11. ADDITIONAL AMOUNTS. The provisions of Section 10.06 of
the Indenture [shall/shall not] apply to the Notes.
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01. SUPPLEMENTAL INDENTURE. The Indenture, as supplemented
and amended by this Supplemental Indenture No. __, is in all respects hereby
adopted, ratified and confirmed.
SECTION 3.02. COUNTERPARTS. This Supplemental Indenture No. __ 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 3.03. GOVERNING LAW. This Supplemental Indenture shall be
governed and construed according to the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. __ to be duly executed, as of the day and year first written
above.
XXXXXX & XXXXX CORPORATION
By
------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By
------------------------------------
Name:
Title:
Exhibit A
to Indenture
REGISTERED
No.
PRINCIPAL AMOUNT: $ __________________
CUSIP NO.
XXXXXX & XXXXX CORPORATION
_____% Note due ______________, ______
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY") (55 XXXXX
XXXXXX, XXX XXXX, XXX XXXX), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
XXXXXX & XXXXX CORPORATION, a Tennessee corporation, (the "COMPANY"
which term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay
CEDE & CO.
C/O THE DEPOSITORY TRUST COMPANY
00 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
or registered assigns, the principal sum of
DOLLARS
on , (the "MATURITY DATE") and to pay interest thereon from , or from the
most recent "INTEREST PAYMENT DATE" to which interest has been
paid or duly provided for, semi-annually on and of each year, commencing , , and
on the Maturity Date, at the rate of % per annum, until the principal hereof is
paid or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor Notes)
is registered at the close of business on the "REGULAR RECORD DATE" for such
interest, which shall be the or (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holder on such Regular Record Date and may either be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee referred to on the reverse hereof,
notice of which shall be given to Holders of Notes of this series not less than
10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
The Company will at all times appoint and maintain a Paying Agent
(which may be the Trustee) authorized by the Company to pay the principal of and
interest on any Notes of this series on behalf of the Company and having an
office or agency in New York, New York and in such other cities, if any, as the
Company may designate in writing to the Trustee (the "PLACE OF PAYMENT") where
Notes of this series may be presented or surrendered for payment and where
notices, designations or requests in respect for payments with respect to Notes
of this series may be served. The Company has initially appointed The Bank of
New York as such Paying Agent.
Interest payments on this Note will be computed and paid on the basis
of a 360-day year of twelve 30-day months. Interest payable on this Note on any
Interest Payment Date and on the Maturity Date will include interest accrued
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for (or from and including , , if no interest has
been paid on this Note) to but excluding such Interest Payment Date or the
Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day (as defined below), principal or interest payable with
respect to such Interest Payment Date or Maturity Date, as the case may be, will
be paid on the next succeeding Business Day with the same force and effect as if
it were paid on the date such payment was due, and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or the Maturity Date, as the case may be. "BUSINESS DAY" means any day other
than Saturday, Sunday or other day on which banking institutions in New York are
obligated or authorized by law to close.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
XXXXXX & XXXXX CORPORATION
By:
------------------------------------
Name:
Title:
Attest:
------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK
As Trustee
By:
------------------------------------
Authorized Signatory
Dated:
---------------------------------
XXXXXX & XXXXX CORPORATION
____% Note due _____________, ______
This Note is one of a duly authorized issue of securities of the
Company (herein called the "NOTES"), limited in aggregate principal amount to $
(except as otherwise provided in the Indenture), issued and to be issued as one
series of debt securities of the Company under an Indenture, dated as of August
1, 1998, as amended and supplemented from time to time (the "INDENTURE"),
between the Company and The Bank of New York, as Trustee (the "TRUSTEE," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. In addition to
the Notes, the Company is authorized to issue an unlimited amount of debt
securities in one or more series (herein collectively with the Notes called the
"DEBT SECURITIES") under the Indenture.
This Note is not redeemable at the option of the Company or at the
option of the Holder prior to the Maturity Date [and is not subject to any
sinking fund].
In case an Event of Default with respect to the Notes of this series
shall occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Note or (ii) certain respective covenants and Events
of Default with respect to this Note, in each case upon compliance with certain
conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debt Securities or each series to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of a majority in principal amount of each series of Debt Securities
to be affected if less than all series are to be affected by such modification
or amendment. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Debt Securities of each series
at the time Outstanding, on behalf of the Holders of all Debt Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note or Notes issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, places and rate, and in the currency herein prescribed.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in the Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar, duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes of this
series and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, Notes of this series issued in definitive registered form
are exchangeable for the same aggregate principal amount of Notes of this series
and of like tenor and authorized denominations, as requested by the Holder
surrendering the same.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple of $1,000 in excess
thereof.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Corporation in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, officer or director, as such, of
the Corporation or of any successor Corporation, either directly or through the
Corporation or any successor Corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
At the option of the Corporation and upon satisfaction of certain
conditions specified in the Indenture, either (a) the Corporation shall be
deemed to have paid and discharged the entire indebtedness on the Notes or (b)
the Corporation need not comply with certain covenants contained in the
Indenture, in each case upon the deposit by the Corporation with the Trustee in
trust for the Holders of the Notes of an amount of funds or obligations issued
or guaranteed by the United States of America sufficient to pay and discharge
upon the stated maturity thereof the entire indebtedness evidenced by the Notes,
all as provided in the Indenture .
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT ______________ Custodian ______________
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfer(s) unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
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(Please Print or Type Name and Address
Including Postal Zip Code of Assignee)
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the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
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to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:_____________________________
Signature Guaranteed
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NOTICE: Signature must be guaranteed NOTICE:
The signature to this assignment
must correspond with the name as
written upon the face of the within
Note in every particular, without
alteration or enlargement or any
change whatever.
