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EXHIBIT 4.2
BANK OF AMERICA CORPORATION,
as Issuer
AND
THE BANK OF NEW YORK,
as Trustee
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INDENTURE
DATED AS OF OCTOBER 2, 2000
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SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS
ARTICLE ONE.
DEFINITIONS
SECTION 1.01. Definitions........................................................................... 1
Additional Amounts...................................................................................... 2
Authorized Officer...................................................................................... 2
Board of Directors...................................................................................... 2
Board Resolution........................................................................................ 2
Book-Entry Note......................................................................................... 2
Business Day............................................................................................ 2
Company................................................................................................. 2
Company Order........................................................................................... 3
Corporate Trust Office.................................................................................. 3
CUSIP number............................................................................................ 3
Depositary.............................................................................................. 3
Event of Default........................................................................................ 3
Global Note............................................................................................. 3
Indenture............................................................................................... 3
Interest Payment Date................................................................................... 4
Issue Date.............................................................................................. 4
Maturity Date........................................................................................... 4
Notes................................................................................................... 4
Note Register and Note Registrar........................................................................ 4
Officers' Certificate................................................................................... 4
Opinion of Counsel...................................................................................... 4
Outstanding............................................................................................. 4
Paying Agent............................................................................................ 5
Person.................................................................................................. 5
Place of Payment........................................................................................ 5
Redemption Date......................................................................................... 5
Regular Record Date..................................................................................... 5
Responsible Officer..................................................................................... 5
Senior Indebtedness..................................................................................... 6
Settlement Date......................................................................................... 6
Survivor's Option....................................................................................... 6
Xxxxxxx................................................................................................. 0
Xxxxxx Xxxxxx Alien..................................................................................... 6
Vice President.......................................................................................... 7
SECTION 1.02. Notice to Noteholders................................................................. 7
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ARTICLE TWO.
EXECUTION, ISSUE AND EXCHANGE OF NOTES
SECTION 2.01. Amount Unlimited; Issuable in Series; Designation of Series........................... 7
SECTION 2.02. Form of Notes......................................................................... 9
SECTION 2.03. Denominations; Record Date............................................................ 10
SECTION 2.04. Execution and Delivery of Notes....................................................... 10
SECTION 2.05. Appointment of Authenticating Agent; Form of Certificate of Authentication............ 11
SECTION 2.06. Authentication and Delivery of Notes.................................................. 13
SECTION 2.07. Exchange and Registration of Transfer of Notes........................................ 13
SECTION 2.08. Mutilated, Defaced, Destroyed, Lost or Stolen Notes................................... 15
SECTION 2.09. Cancellation.......................................................................... 16
SECTION 2.10. Book-Entry Only System................................................................ 16
ARTICLE THREE.
REDEMPTION OF NOTES; SURVIVOR'S OPTION
SECTION 3.01. Redemption of Notes; Applicability of Section......................................... 17
SECTION 3.02. Notice of Redemption; Selection of Notes.............................................. 17
SECTION 3.03. Payment of Notes Called For Redemption................................................ 18
SECTION 3.04. Redemption Suspended During Event of Default.......................................... 18
SECTION 3.05 Survivor's Option..................................................................... 19
SECTION 3.06 Repayment Option...................................................................... 21
ARTICLE FOUR.
PAYMENT AND PAYING AGENTS
SECTION 4.01. Payment of Principal, Premium and Interest............................................ 22
SECTION 4.02. Paying Agents......................................................................... 24
SECTION 4.03. Provisions As To Paying Agents........................................................ 24
SECTION 4.04. Offices for Notices, Etc.............................................................. 25
SECTION 4.05. Determination of Additional Amounts................................................... 26
ARTICLE FIVE.
NOTEHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Noteholder Lists...................................................................... 27
SECTION 5.02. Preservation and Disclosure of Lists.................................................. 27
SECTION 5.03. Reports by the Company................................................................ 28
SECTION 5.04. Reports By The Trustee................................................................ 29
ARTICLE SIX.
REMEDIES
SECTION 6.01. Events of Default..................................................................... 31
SECTION 6.02. Acceleration of Maturity, Rescission and Annulment.................................... 31
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee....................... 32
SECTION 6.04. Trustee May File Proofs of Claim...................................................... 33
SECTION 6.05. Trustee May Enforce Claims Without Possession of Notes................................ 34
SECTION 6.06. Application of Money Collected........................................................ 34
SECTION 6.07. Limitation on Suits................................................................... 35
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SECTION 6.08. Unconditional Right of Noteholders to Receive Principal, Premium and Interest......... 35
SECTION 6.09. Restoration of Rights and Remedies.................................................... 35
SECTION 6.10. Rights and Remedies Cumulative........................................................ 36
SECTION 6.11. Delay or Omission Not Waiver.......................................................... 36
SECTION 6.12. Control by Noteholders................................................................ 36
SECTION 6.13. Waiver of Past Defaults............................................................... 37
SECTION 6.14. Undertaking for Costs................................................................. 37
SECTION 6.15. Waiver of Stay or Extension Laws...................................................... 37
ARTICLE SEVEN.
CONCERNING THE TRUSTEE
SECTION 7.01. Duties And Responsibilities of Trustee................................................ 38
SECTION 7.02. Reliance on Documents, Opinions, Etc.................................................. 39
SECTION 7.03. No Responsibility for Recitals, Etc................................................... 40
SECTION 7.04. Ownership of Notes.................................................................... 40
SECTION 7.05. Moneys To Be Held in Trust............................................................ 40
SECTION 7.06. Compensation and Expenses of Trustee.................................................. 40
SECTION 7.07. Officers' Certificate as Evidence..................................................... 41
SECTION 7.08. Conflicting Interest of Trustee....................................................... 41
SECTION 7.09. Eligibility of Trustee................................................................ 47
SECTION 7.10. Resignation or Removal of Trustee..................................................... 47
SECTION 7.11. Acceptance by Successor Trustee....................................................... 49
SECTION 7.12. Successor By Merger, Etc.............................................................. 50
SECTION 7.13. Limitations on Rights of Trustee as Creditor.......................................... 50
SECTION 7.14. Notice of Default..................................................................... 53
ARTICLE EIGHT.
CONCERNING THE NOTEHOLDERS
SECTION 8.01. Action by Noteholders................................................................. 54
SECTION 8.02. Proof of Execution By Noteholders..................................................... 54
SECTION 8.03. Who Are Deemed Absolute Owners........................................................ 55
SECTION 8.04. Company-Owned Notes Disregarded....................................................... 55
SECTION 8.05. Revocation of Consents; Future Noteholders Bound...................................... 55
SECTION 8.06. Record Date........................................................................... 56
ARTICLE NINE.
NOTEHOLDERS' MEETINGS
SECTION 9.01. Purposes of Meetings.................................................................. 56
SECTION 9.02. Call of Meetings By Trustee........................................................... 56
SECTION 9.03. Call of Meetings by Company or Noteholders............................................ 56
SECTION 9.04. Qualification For Voting.............................................................. 57
SECTION 9.05. Regulations........................................................................... 57
SECTION 9.06. Voting................................................................................ 57
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ARTICLE TEN.
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures Without Consent of Noteholders................................ 58
SECTION 10.02. Supplemental Indentures With Consent of Noteholders................................... 60
SECTION 10.03. Compliance With Trust Indenture Act; Effect of Supplemental Indentures................ 60
SECTION 10.04. Notation on Notes..................................................................... 61
ARTICLE ELEVEN.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, Etc., on Certain Terms....................................... 61
SECTION 11.02. Successor Corporation to be Substituted for Company................................... 61
SECTION 11.03. Opinion of Counsel to be Given Trustee................................................ 62
ARTICLE TWELVE.
SATISFACTION AND DISCHARGE OF INDENTURE, UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture................................................................ 62
SECTION 12.02. Deposited Moneys To Be Held In Trust By Trustee....................................... 63
SECTION 12.03. Paying Agent to Repay Moneys Held..................................................... 63
SECTION 12.04. Return of Unclaimed Moneys............................................................ 63
SECTION 12.05. Satisfaction, Discharge and Defeasance of Notes of Any Series......................... 63
ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Notes Solely Corporate Obligations...................................... 65
ARTICLE FOURTEEN.
MISCELLANEOUS PROVISIONS
SECTION 14.01. Benefits of Indenture Restricted to Parties and Holders............................... 65
SECTION 14.02. Provisions Binding on Company's Successors............................................ 65
SECTION 14.03. Addresses for Notices, Etc............................................................ 65
SECTION 14.04. Evidence of Compliance With Conditions Precedent...................................... 65
SECTION 14.05. Legal Holidays........................................................................ 66
SECTION 14.06. Trust Indenture Act to Control........................................................ 66
SECTION 14.07. Execution in Counterparts............................................................. 66
SECTION 14.08. New York Contract..................................................................... 66
SECTION 14.09. Severability of Provisions............................................................ 66
ARTICLE FIFTEEN.
SUBORDINATION OF NOTES
SECTION 15.01. Notes Subordinate to Senior Indebtedness.............................................. 66
SECTION 15.03. Trustee To Effectuate Subordination................................................... 69
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SECTION 15.04. Trustee Not Charged with Knowledge of Prohibition..................................... 69
SECTION 15.05. Rights of Trustee as Holder of Senior Indebtedness.................................... 70
SECTION 15.06. Trustee Not Fiduciary for Holders of Senior Indebtedness.............................. 70
SECTION 15.07. Article Applicable to Paying Agents................................................... 70
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THIS INDENTURE dated as of October 2, 2000, between BANK OF AMERICA
CORPORATION, a corporation duly organized and existing under the laws of the
state of Delaware (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, as trustee hereunder (the "Trustee," which term shall include any
successor trustee appointed pursuant to Article Seven).
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time to time for
its lawful purposes its subordinated unsecured debt securities, including notes
and other evidence of indebtedness (the "Notes"), and has duly authorized the
execution and delivery of this Indenture to provide for the issuance of the
Notes in one or more series in an unlimited principal amount, to bear such
rates of interest, to mature at such time or times and to have such other
provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Company has duly authorized the execution of this
Indenture and the issuance and sale of its Notes; and
WHEREAS, all acts and things necessary to constitute this Indenture a
valid agreement of the Company according to its terms, have been done and
performed;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the Notes are
authenticated, issued and received, and in consideration of the premises, of
the purchase and acceptance of the Notes by the holders thereof, the Company
covenants and agrees with the Trustee, for the equal and proportionate benefit
of the respective holders from time to time of the Notes, as follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939, as amended, (the "Trust Indenture Act") or which are by reference therein
defined in the Securities Act of 1933, as amended (the "Securities Act"), shall
have the meanings (except as herein otherwise expressly provided or unless the
context otherwise clearly requires) assigned to such terms in the Trust
Indenture Act and in the Securities Act as in force at the date of this
Indenture as originally executed. All accounting terms used herein and not
expressly defined shall have the meaning assigned to such terms in accordance
with generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.
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Additional Amounts:
The term "Additional Amounts" shall mean any additional amounts to be
paid by the Company in respect of Notes of a series, as may be specified
pursuant to Section 4.05 and in such Notes and under the circumstances
specified therein, in respect of certain specified taxes, assessments or other
governmental charges imposed on certain holders who are United States Aliens,
which may be owing to such holders as set forth in Section 4.05.
Authorized Officer:
The term "Authorized Officer" shall mean the Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, any Vice
President, General Counsel, Deputy or Associate General Counsel or Treasurer of
the Company.
Board of Directors:
The term "Board of Directors" or "Board" shall mean the Board of
Directors of the Company or any duly authorized committee of such Board.
Board Resolution:
The term "Board Resolution" shall mean a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or by a committee acting under the authority of, or
appointment by, the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
Book-Entry Note:
The term "Book-Entry Note" shall have the meaning given such term in
Section 2.03.
Business Day:
The term "Business Day" shall mean, with respect to any Note, unless
such Note shall say otherwise, any day other than a Saturday or Sunday that
meets the following applicable requirement: such day is not a day on which
banking institutions are authorized or required by law, regulation or executive
order to be closed in the city (or in any one of the cities, if more than one)
in which amounts are payable, as specified in the form of such Note.
Company:
The term "Company" shall mean Bank of America Corporation until a
successor corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean such
successor corporation.
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Company Order:
The term "Company Order" shall mean a written request, order or
consent signed in the name of the Company by any Authorized Officer and
delivered to the Trustee.
Corporate Trust Office:
The term "Corporate Trust Office" shall mean the principal corporate
trust office of the Trustee at which, at any particular time, its corporate
trust business shall be administered, which office at the date of original
execution of this Indenture is located at The Bank of New York 000 Xxxxxxx
Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
CUSIP number:
The term "CUSIP number" shall mean the identification numbers obtained
by the Company from the CUSIP Service Bureau of Standard & Poor's Corporation
for assignment to the Notes.
Depositary:
The term "Depositary" shall mean, with respect to the Notes of any
series issuable or issued in whole or in part in the form of one or more Global
Notes, the entity designated as Depositary by the Company pursuant to Section
2.01 until a successor Depositary shall have become such, and thereafter
"Depositary" shall mean or include each entity who is then a Depositary
hereunder.
Event of Default:
The term "Event of Default" shall mean any event specified as such in
Section 6.01.
Global Note:
The term "Global Note" shall mean those Notes executed by the Company,
authenticated and delivered to the Depositary, or a custodian at the
Depositary's instruction, to be held and administered by or on behalf of, the
Depositary for the benefit of purchasers of Notes. The Global Notes shall be
registered in the name of the Depositary or its nominee.
Indenture:
The term "Indenture" shall mean this instrument as originally executed
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.
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Interest Payment Date:
The term "Interest Payment Date," when used with respect to any Note,
shall mean the stated maturity of an installment of interest on such Note.
Issue Date:
The term "Issue Date" shall mean, with respect to Notes of any Tranche
the date such Notes are authenticated pursuant to Section 2.06.
Maturity Date:
The term "Maturity Date," when used with respect to any Note, shall
mean the stated maturity of such Note.
Notes:
The term "Note" or "Notes" shall mean the Bank of America Subordinated
InterNotes(SM), as well as any other debt securities of the Company which may be
issued, authenticated and delivered under this Indenture.
Note Register and Note Registrar:
The terms "Note Register" and "Note Registrar" shall have the meanings
set forth in Section 2.07 hereof.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
any Authorized Officer and delivered to the Trustee.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the Company.
Outstanding:
The term "Outstanding," when used with reference to Notes, shall,
subject to the provisions of Section 7.08 and Section 8.04, mean, as of any
particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except
(a) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
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(b) Notes, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other
than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent),
provided, that if such Notes are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in Article
Three provided, or provision satisfactory to the Trustee shall have
been made for giving such notice;
(c) Notes that have been defeased pursuant to Section
12.05 hereof; and
(d) Notes paid or in lieu of and in substitution for
which other Notes shall have been authenticated and delivered pursuant
to the terms of Article Two, unless proof satisfactory to the Trustee
is presented that any such Notes are held by bona fide holders in due
course.
Paying Agent:
The term "Paying Agent" shall mean, initially, The Bank of New York
for the Notes as set forth in Section 4.02, and subsequently, any other paying
agent appointed by the Company from time to time in respect of the Notes.
Person:
The term "Person" shall mean 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:
The term "Place of Payment," when used with respect to Notes of any
series, shall mean the place or places where the principal of (and premium, if
any) and interest, if any, on the Notes are payable.
Redemption Date:
The term "Redemption Date" shall have the meaning given such term in
Section 3.02.
Regular Record Date:
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Notes of any series shall mean the date specified
for that purpose as contemplated by Sections 2.01, 2.03 and 4.01.
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Responsible Officer:
The term "Responsible Officer" when used with respect to the Trustee
shall mean any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the
particular subject.
Senior Indebtedness:
The term "Senior Indebtedness" shall mean any indebtedness for money
borrowed outstanding on the date of execution of this Indenture as originally
executed, or thereafter created, incurred or assumed, for the payment of which
the Company is at the time of determination responsible or liable as obligor,
guarantor or otherwise, and all deferrals, renewals, extensions and refundings
of any such indebtedness or obligations, other than the Notes or any other
indebtedness as to which, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is provided that such
indebtedness is subordinate in right of payment to any other indebtedness of
the Company, it being understood that the description of Senior Indebtedness
set forth herein shall be deemed to include all indebtedness of the Company for
borrowed and purchased money of the Company, all obligations of the Company
arising from off-balance sheet guarantees by the Company and direct credit
substitutes and obligations of the Company associated with derivative products
such as interest and foreign exchange rate contracts and commodity contracts.
Settlement Date:
The term "Settlement Date" shall mean the date of delivery of a Note
against receipt of immediately available funds by the Company in payment for
such Note.
Survivor's Option:
The term "Survivor's Option" shall mean, where applicable, the right
of the personal representative of a beneficial owner of a Note to require the
Company to repay that Note prior to its Maturity Date upon the death of the
beneficial owner of the Note.
Tranche:
The term "Tranche" shall have the meaning given such term in Xxxxxxx
0.00.
Xxxxxx Xxxxxx Alien:
The term "United States Alien" shall mean any person who, for United
States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust,
or a foreign partnership to the extent that one or more of its members is, for
United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust.
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Vice President:
The term "Vice President" when used with respect to the Company or the
Trustee shall mean any vice president, whether or not designated by a number or
word or words added before or after the title "Vice President," including any
Executive or Senior Vice President
SECTION 1.02. Notice to Noteholders. Except as otherwise expressly
provided herein, where this Indenture provides for notice to holders of Notes
of any event, such notice shall be sufficiently given if in writing and mailed,
first class, postage prepaid, to each holder at such holder's address as it
appears in the Note Register, not later than the latest date, and not earlier
than the earliest date prescribed for such notice.
Neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular holder of a Note shall affect the sufficiency of
such notice with respect to other holders of Notes.
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.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by holders of Notes 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.
ARTICLE TWO.
EXECUTION, ISSUE AND EXCHANGE OF NOTES
SECTION 2.01. Amount Unlimited; Issuable in Series; Designation of
Series. Upon the execution of this Indenture, or from time to time thereafter,
Notes up to the aggregate principal amount and containing terms and conditions
from time to time authorized by or pursuant to a Board Resolution, or in an
indenture supplemental hereto (a "Supplemental Indenture"), may be executed and
delivered by the Company. Notes will be delivered to the Trustee for
authentication, after execution by the Company, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon a Company Order without any
further action by the Company. The Trustee shall have the right to decline to
authorize and deliver any Notes under this Section if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by a committee of Responsible Officers determines
that such action would expose the Trustee to personal liability to existing
holders of Notes.
The Notes may be issued in one or more series. The aggregate principal
amount of Notes of all series which may be authenticated and delivered and
outstanding under this Indenture is not limited. The Notes of a particular
series may be issued up to the aggregate principal amount
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of Notes for such series from time to time authorized by or pursuant to a Board
Resolution or Supplemental Indenture. Any limitations on the amount of Notes of
a series may be periodically increased by Board Resolution or Supplemental
Indenture.
There shall be established in or pursuant to a Board Resolution or
Supplemental Indenture, and set forth in an Officers' Certificate, prior to the
initial issuance of Notes of any series:
(1) the designation of the Note of the series (which shall
distinguish the Notes of the series from all other series of Notes);
(2) the aggregate principal amount of the Notes of the series
which may be then authenticated and delivered under this Indenture (except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes of the series pursuant to Section
2.07, 2.08, 3.01 or 10.04) which amount may be "reopened" and increased;
(3) the date or dates on which the principal of the Notes of the
series is payable;
(4) the rates at which Notes of the series shall bear interest,
if any, the date from which such interest shall accrue, the Interest Payment
Dates and the Regular Record Date;
(5) the place or places (in addition to such place or places
specified in this Indenture) where the principal of (and premium, if any) and
interest, if any, on Notes of the series shall be payable;
(6) the right, if any, of the Company to redeem Notes, in whole
or in part, at its option and the period or periods within which, the price or
prices at which, and the terms and conditions upon which, Notes of the series
may be redeemed pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Notes of the series pursuant to any mandatory redemption sinking fund or
analogous provisions or at the option of a holder thereof (including the
Survivor's Option) and the period or periods within which, the price or prices
at which, and the terms and conditions upon which, Notes of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(8) the denominations in which Notes of the series shall be
issuable, if other than $1,000 and integral multiples of $1,000;
(9) any portion of the principal amount of Notes of the series
which shall be payable upon declaration of acceleration of the maturity thereof
or which the Trustee shall be entitled to claim pursuant to Section 6.02;
(10) whether any Notes of the series shall be issued in any form
other than book-entry only and the details of such issuance and the provisions
relating to the transfer of such Notes;
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(11) if any Notes of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Note of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(12) the provisions, if any, for the defeasance of any Notes of the
series;
(13) the currency, currencies or currency units in which payment of
the principal of (and premium, if any) and any interest on any Notes of the
series shall be payable if other than the currency of the United States of
America;
(14) if the Company has agreed to pay Additional Amounts, the
circumstances under which those Additional Amounts will be paid and whether the
Company has the option to redeem such Notes rather than pay such Additional
Amounts;
(15) any trustees, depositories, authenticating or paying agents,
registrars or any other agents with respect to the Notes of such series; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Notes of any one series shall be substantially identical except
(i) as to denomination, interest rate, maturity and other similar terms, and
(ii) as may otherwise be provided in or pursuant to such Board Resolution or
Supplemental Indenture and set forth in an Officers' Certificate.
If any of the terms of the Notes are established by action taken
pursuant to a Board Resolution or Company Order, a copy of an appropriate
record of such action shall be certified by the Secretary or any Assistant
Secretary of the Company and delivered to the Trustee at the same time as or
prior to the delivery of the Officers' Certificate setting forth the terms of
those Notes.
SECTION 2.02. Form of Notes. The Notes of each series shall be
substantially in the forms approved from time to time by or pursuant to a Board
Resolution, Supplemental Indenture or an Officers' Certificate. Such forms may
have 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 or designation and such legends or
endorsements printed, lithographed or engraved thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock exchange on
which the Notes may be listed, or to conform to usage.
Notes of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this Indenture, if so
provided by or pursuant to the Board Resolution, Supplemental Indenture or
Officers' Certificate, and the authorized principal amount
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of any series may be increased to provide for issuances of additional Notes of
such series. If so provided by or pursuant to the Board Resolution,
Supplemental Indenture or Officers' Certificate, the terms of such Notes to be
issued from time to time may be determined as set forth in such Board
Resolution, Supplemental Indenture or Officers' Certificate, as the case may
be. All Notes of any one series shall be substantially identical except as to
denomination, interest rate, maturity and other similar terms and except as may
otherwise be provided by or pursuant to the related Board Resolution,
Supplemental Indenture or Officers' Certificate.
The Notes may be typed, printed, lithographed or engraved on steel
engraved borders or produced or reproduced in any other manner (including
copies of manually signed originals), all as determined by the officers of the
Company executing such Notes as evidenced by their execution of such Notes by
manual or facsimile signature.
SECTION 2.03. Denominations; Record Date. Unless otherwise
determined or pursuant to a Board Resolution or Supplemental Incentive, the
Notes of each series shall be issuable in book-entry-only form ("Book-Entry
Notes") without coupons in denominations of $1,000 or more (and any amount in
excess thereof that is an integral multiple of $1,000).
The person in whose name any Note is registered at the close of
business on the Regular Record Date with respect to an Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Note upon any transfer or exchange
thereof subsequent to such Regular Record Date and prior to such Interest
Payment Date; provided, however, that if and to the extent the Company shall
default in the payment of the interest due on such Interest Payment Date, such
defaulted interest shall be paid to the persons in whose names outstanding
Notes are registered on a subsequent record date established by notice given by
mail by or on behalf of the Company to the holders of Notes of the series in
default not less than 15 days preceding such subsequent record date, such
record date to be not less than five days preceding the date of payment of such
defaulted interest.
SECTION 2.04. Execution and Delivery of Notes. The Notes shall be
signed on behalf of the Company by its Chairman of the Board, President, Chief
Executive Officer or any Vice President. Such signatures may be the manual or
facsimile signatures of the present or any future such officers.
Only such Notes as shall bear thereon a certificate of authentication
substantially in the form described in Section 2.05, executed by the Trustee by
manual signature of one of its responsible officers if a Global Note, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate upon any Note shall be conclusive evidence that the
Note so authenticated has been duly authenticated and delivered hereunder and
that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Note so signed shall be
authenticated and delivered by the Trustee or the Company or disposed of by the
Company, such Note nevertheless may be authenticated and delivered or disposed
of as though the person who signed such Note had not ceased to be such officer
of the Company; and any Note may be signed on behalf of the Company by such
persons
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as, at the actual date of the execution of such Note, shall be the proper
officers of the Company, although at the date of the execution of this
Indenture any such person was not such officer.
Within five days after the execution and delivery of this Indenture,
the Company shall deliver to the Trustee an Officers' Certificate as to the
incumbency and specimen signatures of officers authorized to execute Notes and
to give Company Orders under this Indenture and, as long as Notes are
outstanding under this Indenture, shall deliver a similar Officers' Certificate
each year on the anniversary of the date of the first such Officers'
Certificate. The Trustee may conclusively rely on such certificate and the
documents delivered with authorized signatures (unless revoked by superseding
comparable documents) as to the authorization of the Board of Directors of any
Notes delivered hereunder, and the form, terms and conditions thereof, and as
to the authority of the instructing officers referred to in this Section so to
act.
SECTION 2.05. Appointment of Authenticating Agent; Form of
Certificate of Authentication. The certificate of authentication as to Notes
shall be in the following form:
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Notes described in the within-mentioned Indenture.
The Bank of New York, as Trustee
By:
-----------------------------------
Authorized Signatory
The Trustee may appoint an authenticating agent or agents (which may
be an affiliate or affiliates the Company) with respect to one or more series
of Notes which shall be authorized to act on behalf of the Trustee to
authenticate Notes of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
2.08, and Notes so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Notes 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 or of any State
or Territory thereof or of the District of Columbia, which (a) is authorized
under such laws to exercise corporate trust powers or to otherwise act as
authenticating agent, (b) is subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority, and (c) shall have at all
times a combined capital and surplus of not less than $5,000,000. 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
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authenticating agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such authenticating agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such authenticating agent, shall continue to be an
authenticating agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such authenticating agent.
An authenticating agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an authenticating agent by giving written notice
thereof to such authenticating agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
authenticating agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor authenticating
agent which shall be acceptable to the Company and shall promptly give notice
of such appointment to all holders of Notes in the manner and to the extent
provided in Section 1.02. Any successor authenticating agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an authenticating agent. No successor authenticating agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 7.06.
If an appointment with respect to one or more series is made pursuant
to this Section, the Notes of such series may have endorsed thereon, in lieu of
the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
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[ALTERNATIVE FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
----------------------------------------
as Authenticating Agent
By:
----------------------------------------
Authorized Signatory
If all of the Notes of a series are not originally issued at one time,
and the Trustee does not have an office capable of authenticating Notes upon
original issuance located in a Place of Payment where the Company wishes to
have Notes of such series authenticated upon original issuance, the Trustee, if
so requested by the Company in writing, shall appoint in accordance with this
Section an authenticating agent (which, if so requested by the Company, shall
be such affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Notes, provided that
the terms and conditions of such appointment are acceptable to the Trustee.
SECTION 2.06. Authentication and Delivery of Notes. At any time and
from time to time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company to the Trustee for
authentication by the Trustee together with a Company Order for the
authentication and delivery of such Notes, and the Trustee shall authenticate
and deliver such Notes in accordance with such Company Order. A Company Order
may specify that instructions to the Trustee as to the authentication and
delivery of Notes may be given on behalf of the Company by any person
designated in such Company Order, and the Trustee may conclusively rely on any
such instructions as if given by the Company until such Company Order is
expressly revoked by a subsequent Company Order.
Notes of the same series which have the same terms, including the same
Settlement Date, Maturity Date, Interest Rate, Interest Payment Dates and
Redemption Date, if any (all such Notes being collectively referred to herein
as a "Tranche"), may be represented by a single global note, without interest
coupons.
SECTION 2.07. Exchange and Registration of Transfer of Notes.
(a) The Company shall keep, at an office or agency to be
designated and maintained by the Company in accordance with Section
4.04 (as such, a "Note Registrar"), registry books (the "Note
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register Notes and shall register the
transfer of Notes of each such series as provided in this Article Two.
Such Note Register
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shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all
reasonable times such Note Register shall be open for inspection by
the Trustee. Upon due presentment for registration of transfer of any
Notes of a particular series at such office or agency maintained
pursuant to Section 4.04 for such purpose in a Place of Payment, the
Company shall execute and register and the Trustee shall authenticate
and make available for delivery in the name of the transferee or
transferees a new Note or Notes of such series of any authorized
denominations and for an equal aggregate principal amount and tenor.
(b) Notwithstanding any other provisions of this Section,
unless and until it is exchanged in whole or in part for individual
certificated Notes represented thereby, in definitive form, a Global
Note may not be transferred except as a whole by the Depositary for
such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or
by such Depositary or any such nominee to a successor Depositary for
such series or a nominee of such successor Depositary.
If at any time the Depositary for Notes of a series notifies
the Company that it is unwilling or unable to continue as Depositary
for the Book-Entry Notes of such series or if at any time the
Depositary for the Book-Entry Notes of such series shall no longer be
eligible under Section 2.06, the Company shall appoint a successor
Depositary with respect to the Notes of such series. If a successor
Depositary for the Notes is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, authenticate and deliver,
Notes of such series in definitive form in an aggregate principal
amount and like terms and tenor equal to the principal amount of the
Book-Entry Note or Notes in global form representing such series in
exchange for such Book-Entry Note or Notes in global form.
The Company may at any time and in its sole discretion
determine that individual Book-Entry Notes of any series shall no
longer be represented by a Global Note. In such event the Company will
execute, authenticate and deliver individual certificated Notes of
such series in definitive form in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Global
Note representing such series in exchange for such Global Note.
If directed by the Company with respect to a series of
Book-Entry Notes, the Depositary for such series of Notes may
surrender the Global Note for such series of Notes in exchange in
whole or in part for individual Notes of such series in definitive
form and of like terms and tenor on such terms as are acceptable to
the Company, the Trustee and such Depositary. Thereupon, the Company
shall execute, authenticate and deliver, without service charge:
(1) to the Depositary or to each person
specified by such Depositary a new individual Note or Notes
of the same series and of the same tenor, of authorized
denominations, in aggregate principal amount equal to and in
exchange for such person's beneficial interest in the Global
Note; and
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(2) to such Depositary a new Global Note in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the
aggregate principal amount of the individual Notes delivered
to holders thereof.
Upon the exchange of a Global Note for Notes in definitive
form, such Global Note shall be cancelled by the Trustee. Certificated
Notes issued in exchange for a Global Note pursuant to this Section
shall be registered in such names and in such authorized denominations
as the Depositary for such Global Note, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the
Trustee in writing. The Company shall deliver such certificated Notes
to the persons in whose names such Notes are so registered or to the
Depositary.
Whenever any certificated Notes are surrendered for exchange,
the Company shall execute, authenticate and deliver the Notes which
the holder making the exchange is entitled to receive. All Notes
issued upon any registration of transfer or exchange of Notes shall be
the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Notes of any series during a period
beginning at the opening of business 15 days before the day of the
selection for redemption of Notes of that series under Section 3.02
and ending at the close of business on the day of such selection or
(ii) to register the transfer of or exchange any Note selected for
redemption in whole or in part, except in the case of any Note to be
redeemed in part, the portion thereof not to be redeemed.
The ownership interest of a beneficial owner in a Book-Entry
Note will be recorded through the records of such participants in the
Depositary or through the separate records of such participants and
the records of indirect participants in the Depositary.
Transfers of a Book-Entry Note will be accomplished by book
entries made by the Depositary and, in turn, by participants (and in
certain cases, one or more indirect participants in the Depositary)
acting on behalf of beneficial transferors and transferees of such
Book-Entry Note.
No service charge shall be made for any exchange of Notes,
but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
therewith.
SECTION 2.08. Mutilated, Defaced, Destroyed, Lost or Stolen Notes.
In case any Note shall at any time become mutilated, defaced, destroyed, lost
or stolen, and such Note or satisfactory evidence of the destruction, loss, or
theft thereof (together with the security and indemnity hereinafter referred to
and such other documents or proof required by the Company),
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shall be delivered to the Company, then the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of such Note, a new Note
bearing a number not contemporaneously outstanding of the same form, Settlement
Date, Interest Rate, denomination, Maturity Date and Interest Payment Dates. In
the case of any mutilated, defaced, destroyed, lost or stolen Note, a surety
bond or other indemnity satisfactory to the Company and the Trustee may be
required of the holder of such Note before a replacement Note will be issued.
All expenses (including taxes and governmental charges) associated with
obtaining such indemnity and in issuing the new Note shall be borne by the
holder of the Note so mutilated, defaced, destroyed, lost or stolen.
In case any such mutilated, defaced, destroyed, lost or stolen Note
has become or is about to become due and payable in full, the Company in its
discretion, instead of issuing a new Note may pay such Note on the date such
Note is due and payable.
Every substituted Note issued pursuant to the provisions of this
Section by virtue of the fact that any Note is destroyed, lost or stolen shall,
with respect to such Note, constitute an additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Note shall be found
at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.
All Notes shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, defaced, destroyed, lost or stolen Notes and shall, to the extent
permitted by law, preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.09. Cancellation. All Notes surrendered for payment,
redemption, registration of transfer, or exchange, as the case may be, shall,
if surrendered to the Trustee, be cancelled and destroyed by it in accordance
with its customary procedures and a certificate of destruction delivered to the
Company, or shall, if surrendered to any Paying Agent, be delivered to the
Trustee and promptly cancelled and destroyed by the Trustee and a certificate
of destruction delivered to the Company, and no Notes shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Notes and deliver a certificate
of destruction to the Company.
SECTION 2.10. Book-Entry Only System. If specified by the Company
pursuant to Section 2.01 with respect to Notes represented by a Note in global
form, a series of Notes may be issued initially in book-entry only form and, if
issued in such form, shall be represented by one or more Notes in global form
registered in the name of the Depositary or other depositary designated with
respect thereto. So long as such system of registration is in effect, (a) Notes
of a series so issued in book-entry only form will not be issuable in the form
of or exchangeable for Notes in certificate or definitive registered form, (b)
the records of the Depositary or such other depositary will be determinative
for all purposes and (c) neither the Company, the Trustee nor any paying agent,
Note Registrar or transfer agent for such Notes will have any responsibility or
liability for (i) any aspect of the records relating to or payments made on
account of owners of
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beneficial interests in the Notes of such series, (ii) maintaining, supervising
or reviewing any records relating to such beneficial interests, (iii) receipt
of notices, voting and requesting or directing the Trustee to take, or not to
take, or consenting to, certain actions hereunder, or (iv) the records and
procedures of the Depositary or such other depositary, as the case may be.
ARTICLE THREE.
REDEMPTION OF NOTES; SURVIVOR'S OPTION
SECTION 3.01. Redemption of Notes; Applicability of Section. The
Company shall have the right to permit any Note issued hereunder to be
redeemed. The terms of any such redemption shall be contained in the particular
Note. Redemption of Notes of any series permitted or required by the terms of
the Notes shall be made in accordance with such terms and this Section;
provided, however, that if any provision of a series of Notes conflicts with
any provision of this Section, the provision of such series of Notes shall
govern.
SECTION 3.02. Notice of Redemption; Selection of Notes. In case the
Company elects to exercise the rights to redeem all or, as the case may be, any
part of a series of Notes, it shall fix a date for redemption (the "Redemption
Date"). Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company, or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Company or the
Trustee, as the case may be, shall give notice of such redemption, at least 30
and not more than 60 days prior to the date fixed for a redemption to the
holders of such Notes so to be redeemed. Notice given in such manner shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice or any defect in
the notice to the holder of any such Note designated for redemption shall not
affect the validity of the proceedings for the redemption of any other such
Note. If the Company requests the Trustee to give any notice of redemption, it
shall make such request at least 5 days prior to the designated date for
delivering such notice, unless a shorter period is satisfactory to the Trustee.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which such Notes are to be redeemed, the
CUSIP numbers of such Notes, the Place of Payment where such Notes will be paid
upon presentation and surrender of such Notes, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, and that on
and after said date interest thereon or on the portions thereof to be redeemed
will cease to accrue. If less than all of the series is to be redeemed, the
notice of redemption shall specify the numbers of the Notes to be redeemed. In
case any Note is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall
state that, upon surrender of such Note, a new Note or Notes of the same series
in principal amount equal to the unredeemed portion thereof will be issued.
On or before the Redemption Date, the Company will deposit in trust
with the Trustee or with one or more paying agents an amount of money
sufficient to redeem on the Redemption Date all the Notes or portions of Notes
so called for redemption at the appropriate redemption price, together with
accrued interest, if any, to the date fixed for redemption. If less than all of
a series of Notes is to be redeemed, the Company will give the Trustee adequate
written notice at
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least 45 days in advance (unless a shorter notice shall be satisfactory to the
Trustee) as to the aggregate principal amount of Notes to be redeemed.
If less than all the Notes of a series is to be redeemed, the Trustee
shall select, pro rata or by lot or in such other manner as it shall deem
appropriate and fair, not more than 60 days prior to the date of redemption,
the numbers of such Notes Outstanding not previously called for redemption, to
be redeemed in whole or in part. The portion of principal of Notes so selected
for partial redemption shall be equal to the minimum authorized denomination
for Notes of that series or any integral multiple thereof. The Trustee shall
promptly notify the Company of the Notes to be redeemed. If, however, less than
all the Notes of a series having differing issue dates, interest rates and
stated maturities are to be redeemed, the Company in its sole discretion shall
select the particular Notes of such series to be redeemed and shall notify the
Trustee in writing at least 45 days prior to the relevant Redemption Date.
SECTION 3.03. Payment of Notes Called For Redemption. If notice of
redemption has been given as provided above, the Notes or portions of Notes
with respect to which such notice has been given shall become due and payable
on the date and at the place stated in such notice at the applicable redemption
price, together with any interest accrued to the date fixed for redemption, and
on and after said date (unless the Company shall default in the payment of such
Notes at the redemption price, together with interest accrued to said date)
interest on such Notes or portions of Notes so called for redemption shall
cease to accrue. On presentation and surrender of such Notes subject to
redemption at the Place of Payment and in the manner specified in such notice,
such Notes or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption.
Any Note that is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the holder thereof or such holder's
attorney duly authorized in writing) and upon such presentation, the Company
shall execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Note or
Notes of the same series, of authorized denominations, in aggregate principal
amount equal to the unredeemed portion of the principal of the Note so
presented. If a Global Note is so surrendered, such new Note so issued shall be
a new Global Note.
SECTION 3.04. Redemption Suspended During Event of Default. The
Trustee shall not redeem any Notes (unless all Notes then outstanding are to be
redeemed) or commence the giving of any notice or redemption of Notes during
the continuance of any Event of Default of which a Responsible Officer of the
Trustee has actual knowledge or notice, except that where the giving of notice
of redemption of any Notes shall theretofore have been made, the Trustee shall
redeem such Notes, provided funds are deposited with it for such purpose.
Except as aforesaid, any moneys theretofore or thereafter received by the
Trustee shall, during the continuance of such Event of Default, be held in
trust for the benefit of the noteholders and applied in the manner set forth in
Section 6.06; provided, however, that in case such Event of Default shall
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have been waived as provided herein or otherwise cured, such moneys shall
thereafter be held and applied in accordance with the provisions of this
Article.
SECTION 3.05 Survivor's Option. If so specified in any Note, the
representative of a beneficial owner of such Note shall have the option to
elect repayment of such Note following the death of the beneficial owner of
such Note (a "Survivor's Option"). Unless otherwise specified in the Note, no
Survivor's Option may be exercised if the deceased beneficial owner of the Note
held such Note for less than six months prior to the beneficial owner's death.
Pursuant to exercise of the Survivor's Option, the Company shall repay
any Note (or portion thereof) properly tendered for repayment by or on behalf
of the person (the "Representative") that has authority to act on behalf of the
deceased beneficial owner of a Note under the laws of the appropriate
jurisdiction (including, without limitation, the personal representative,
executor, surviving joint tenant or surviving tenant by the entirety of such
deceased beneficial owner) at a price equal to 100% of the principal amount of
the beneficial interest of the deceased owner in such Note plus accrued
interest to the date of such repayment (or at a price equal to the Amortized
Face Amount for Original Issue Discount Notes and Zero-Coupon Notes on the date
of such repayment), subject to the following limitations:
(a) The Company may, in its sole discretion, limit the
aggregate principal amount of Notes as to which exercises of the
Survivor's Option shall be accepted in any calendar year (the "Annual
Put Limitation") to 1% of the Outstanding principal amount of the
Notes as of the end of the most recent fiscal year, but not less than
$1,000,000 in any such calendar year, or such greater amount as the
Company in its sole discretion may determine for any calendar year,
and may limit to $200,000, or such greater amount as the Company in
its sole discretion may determine for any calendar year, the aggregate
principal amount of Notes (or portions thereof) as to which exercise
of the Survivor's Option will be accepted in such calendar year with
respect to any individual deceased owner or beneficial interests in
such Notes (the "Individual Put Limitation").
(b) The Company shall not make principal repayments
pursuant to exercise of the Survivor's Option in amounts that are less
than $1,000, and, in the event that the limitations described in the
preceding sentence would result in the partial repayment of any Note,
the principal amount of such Note remaining outstanding after
repayment must be at least $1,000 (the minimum authorized denomination
of the Notes).
(c) Any Note (or portion thereof) tendered pursuant to
exercise of the Survivor's Option may be withdrawn by a written
request by the Representative of the deceased owner received by the
Trustee prior to its repayment.
Each Note (or portion thereof) that is tendered pursuant to valid
exercise of the Survivor's Option shall be accepted promptly in the order all
such Notes are tendered, except for any Note (or portion thereof) the
acceptance of which would contravene (i) the Annual Put Limitation, if applied,
or (ii) the Individual Put Limitation, if applied, with respect to the relevant
individual deceased owner of beneficial interests therein. If, as of the end of
any calendar year, the aggregate principal amount of Notes (or portions
thereof) that have been accepted pursuant to
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exercise of the Survivor's Option during such year has not exceeded the Annual
Put Limitation, if applied, for such year, any exercise(s) of the Survivor's
Option with respect to Notes (or portions thereof) not accepted during such
calendar year because such acceptance would have contravened the Individual Put
Limitation, if applied, with respect to an individual deceased owner of
beneficial interests therein shall be accepted in the order all such Notes (or
portions thereof) were tendered, to the extent that any such exercise would not
trigger the Annual Put Limitation for such calendar year. Normally, any Note
(or portion thereof) accepted for repayment pursuant to exercise of the
Survivor's Option shall be repaid on the first Interest Payment Date that
occurs 20 or more calendar days after the date of such acceptance. In the event
that a Note (or any portion thereof) tendered for repayment pursuant to valid
exercise of the Survivor's Option is not accepted, the Trustee shall deliver a
notice by first-class mail to the registered holder thereof at its last known
address as indicated in the Note Register, that states the reason such Note (or
portion thereof) has not been accepted for payment.
In order for a Survivor's Option to be validly exercised with respect
to any Note (or portion thereof), the Trustee must receive from the
Representative of the deceased owner (i) a written request for repayment signed
by the Representative, and such signature must be guaranteed by a member firm
of a registered national securities exchange or of the National Association of
Securities Dealers, Inc. (the "NASD") or a commercial bank or trust company
having an office or correspondent in the United States, (ii) tender of a Note
(or portion thereof) to be repaid, (iii) appropriate evidence satisfactory to
the Trustee that (A) the deceased was the owner of a beneficial interest in
such Note at the time of death and for at least six months prior to such
Owner's death, (B) the death of such beneficial owner has occurred and (C) the
Representative has authority to act on behalf of the deceased beneficial owner,
(iv) if applicable, a properly executed assignment or endorsement, and (v) if
the beneficial interest in such Note is held by a nominee of the deceased
beneficial owner, a certificate satisfactory to the Trustee from such nominee
attesting to the deceased's ownership of a beneficial interest in such Note,
and (vi) tax waivers and such other instruments or documents that the Trustee
reasonably requires in order to establish the validity of ownership of the
Notes and the Claimants entitled to payment. Subject to the Company's right
hereunder to limit the aggregate principal amount of Notes as to which
exercises of the Survivor's Option shall be accepted in any one calendar year,
all questions as to the eligibility or validity of any exercise of the
Survivor's Option will be determined by the Trustee, in its sole discretion,
which determination shall be final and binding on all parties.
The death of a person owning a Note in joint tenancy or tenancy by the
entirety with another or others shall be deemed the death of the holder of the
Note, and the entire principal amount of the Note so held shall be subject to
repayment, together with interest accrued thereon to the repayment date. The
death of a person owning a Note by tenancy in common shall be deemed the death
of a holder of a Note only with respect to the deceased holder's interest in
the Note so held by tenancy in common; except that in the event a Note is held
by husband and wife as tenants in common, the death of either shall be deemed
the death of the holder of the Note, and the entire principal amount of the
Note so held shall be subject to repayment. The death of a person who, during
his or her lifetime, was entitled to substantially all of the beneficial
interests of ownership of a Note, shall be deemed the death of the holder
thereof for purposes of this provision, regardless of the registered holder, if
such beneficial interest can be established to the satisfaction of the Trustee.
Such beneficial interest shall be deemed to exist in typical cases of
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nominee ownership, ownership under the Uniform Transfers to Minors Act,
community property or other joint ownership arrangements between a husband and
wife and trust arrangements where one person has substantially all of the
beneficial ownership interest in the Note during his or her lifetime.
For Notes represented by a Global Note, the Depository or its nominee
shall be the holder of such Note and therefore shall be the only entity that
can exercise the Survivor's Option for such Note. To obtain repayment pursuant
to exercise of the Survivor's Option with respect to such Note, the
Representative must provide to the broker or other entity through which the
beneficial interest in such Note is held by the deceased owner (i) the
documents described in clauses (i), (iii) and (vi) of the second preceding
paragraph and (ii) instructions to such broker or other entity to notify the
Depository of such Representative's desire to obtain repayment pursuant to
exercise of the Survivor's Option. Such broker or other entity shall provide to
the Trustee (i) the documents received from the Representative referred to in
clause (i) of the preceding sentence and(ii) a certificate satisfactory to the
Trustee from such broker or other entity stating that it represents the
deceased beneficial owner. Such broker or other entity shall be responsible for
disbursing any payments it receives pursuant to exercise of the Survivor's
Option to the appropriate Representative.
SECTION 3.06 Repayment Option. If so specified in any Note, the
beneficial owner of that Note shall have the option to elect repayment of such
Note (the "Repayment Option") upon delivery of an irrevocable notice of exercise
of such option to the Company and the Trustee. Such notice shall be delivered at
least 30, but no more than 60 days prior to the next Interest Payment Date
proposed as the date for repayment. Repurchases of Notes upon exercise of the
Repayment Option shall occur only on an Interest Payment Date. Unless otherwise
specified in the Note, such repayment shall be paid at a price equal to 100% of
the principal amount of the beneficial interest subject to such repayment, plus
accrued interest to the date of such repayment. The Note may prescribe an
alternate purchase price formula.
In order for a Repayment Option to be validly exercised with respect to
any Note (or portion thereof), the Trustee must receive from the beneficial
owner of such Note (i) a written request for repayment signed by the beneficial
owner of such Note, with signature guaranteed by a member firm of a registered
national securities exchange or of the NASD or a commercial bank or trust
company having an office or correspondent in the United States, (ii) tender of
the Note (or portion thereof) to be repaid, (iii) appropriate evidence
satisfactory to the Trustee that such individual is the owner of a beneficial
interest in such Note and (iv) if applicable, a properly executed assignment or
endorsement.
For Notes represented by a Global Note, the Depository or its nominee
shall be the holder of such Note and therefore shall be the only entity that can
exercise the Repayment Option for such Note. To obtain repayment pursuant to
exercise of the Repayment Option with respect to such Note, the beneficial owner
of such Note must provide to the broker or other entity through which the
beneficial interest in such Note is held by such beneficial owner (i) the
documents described in clauses (i) and (iii) of the preceding paragraph and (ii)
instructions to such broker or other entity to notify the Depository of such
beneficial owner's desire to obtain repayment pursuant to exercise of the
Repayment Option.
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In addition, the beneficial owner shall provide the Trustee with such
additional information and documentation as the Trustee shall reasonably
request.
ARTICLE FOUR.
PAYMENT AND PAYING AGENTS
SECTION 4.01. Payment of Principal, Premium and Interest. The
Company will duly and punctually pay or cause to be paid the principal of (and
premium, if any) and interest, if any, on each of the Notes at the place, at
the respective times and in the manner provided in the terms of the Notes and
in this Indenture.
Each Note will bear interest from and including its Issue Date at the
rate per annum set forth in such Note and until the principal amount thereof is
paid, or made available for payment, in full. Interest on each Note will be
payable either periodically on each Interest Payment Date as set forth in such
Note or at Maturity (or on the date of redemption or repayment if a Note is
repurchased by the Company prior to Maturity pursuant to mandatory or optional
redemption provisions or the Survivor's Option). Interest will be payable to
the person in whose name a Note is registered at the close of business on the
Regular Record Date next preceding each Interest Payment Date; provided,
however, interest payable at Maturity, on a date of redemption or in connection
with the exercise of the Survivor's Option will be payable to the person to
whom principal shall be payable.
Any payment of principal (and premium, if any) or interest required to
be made on a Note on a day which is not a Business Day need not be made on such
day, but may be made on the next succeeding Business Day with the same force
and effect as if made on such day, and no additional interest shall accrue as a
result of such delayed payment. Unless otherwise specified in a Note, any
interest on the Notes will be computed on the basis of a 360-day year of twelve
30-day months.
Unless otherwise specified in a Board Resolution or in the Note:
(a) the Interest Payment Dates for a Note that provides
for monthly interest payments shall be the fifteenth day of each
calendar month commencing in the first calendar month following the
month in which the Note is issued;
(b) In the case of a Note that provides for quarterly
interest payments, the Interest Payment Dates shall be the fifteenth
day of each of the months specified in the Pricing Supplement,
commencing in the third succeeding calendar month following the month
in which the Note is issued;
(c) In the case of a Note that provides for semi-annual
interest payments, the Interest Payment Dates shall be the fifteenth
day of each of the months specified in the Pricing Supplement,
commencing in the sixth succeeding calendar month following the month
in which the Note is issued; and
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(d) In the case of a Note that provides for annual
interest payments, the Interest Payment Date shall be the fifteenth
day of the month specified in the Pricing Supplement, commencing in
the twelfth succeeding calendar month following the month in which the
Note is issued.
The Regular Record Date with respect to any Interest Payment Date
shall be the first day of the calendar month in which such Interest Payment
Date occurs, except that the Regular Record Date with respect to the final
Interest Payment Date shall be the final Interest Payment Date.
Each payment of interest on a Note shall include accrued interest from
and including the Issue Date or from and including the last day in respect of
which interest has been paid (or duly provided for), as the case may be, to,
but excluding, the Interest Payment Date or Maturity Date, as the case may be.
Promptly after each Regular Record Date, the Trustee will deliver to
the Company and the Depositary a written notice specifying by CUSIP number the
amount of interest to be paid on each Note (other than an Interest Payment Date
coinciding with the Maturity Date) and the total of such amounts. On such
Interest Payment Date, the Company will pay to the Trustee, and the Trustee in
turn will pay to the Depositary in accordance with procedures agreed to by the
Depositary, such total amount of interest due.
All interest payments on Book-Entry Notes will be paid by the Trustee
to the Depositary in accordance with existing arrangements between the Trustee
and the Depositary. Thereafter, on each Interest Payment Date, the Depositary
will pay, in accordance with its operating procedures then in effect, such
amounts in funds available for immediate use to the respective participants
with payments in amounts proportionate to their respective holdings in
principal amount of beneficial interest in such Global Note as are recorded in
the book-entry system maintained by the Depositary. Neither the Company nor the
Trustee shall have any direct responsibility or liability for the payment by
the Depositary of the principal of or interest on, the Book-Entry Notes to such
participants. If any Interest Payment Date for any Note is not a Business Day,
the payment due on such day shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the period from and after such
Interest Payment Date.
On or about the first Business Day of each month, the Trustee will
deliver to the Company and the Depositary a written list of principal and
interest to be paid on each Global Note representing Book-Entry Notes maturing
in the following month. The Trustee, the Company and the Depositary will
confirm the amounts of such principal and interest payments with respect to
each Global Note on or about the fifth Business Day preceding the Maturity Date
of such Global Note. On the Maturity Date, the Company will pay to the Trustee,
and the Trustee in turn will pay to the Depositary, the principal amount of
such Global Note, together with interest due on such Maturity Date.
If any Maturity Date of a Note is not a Business Day, the payment due
on such day shall be made on the next succeeding Business Day and no interest
shall accrue on such payment for
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the period from and after such Maturity Date. Promptly after payment to the
Depositary of the principal and interest due on the Maturity Date of such
Global Note and all Book-Entry Notes represented by such Global Note, the
Trustee will cancel and destroy such Global Note in accordance with the
Indenture and deliver a certificate of destruction to the Company.
The amount of any taxes required under applicable law to be withheld
from any interest payment on a Book-Entry Note will be determined and withheld
by the participant, indirect participant in the Depositary or other person
responsible for forwarding payments and materials directly to the beneficial
owner of such Note.
Any interest payments on a certificated Note (other than interest on
the Maturity Date) will be made by check and mailed by the Company to the
person entitled thereto as listed on the Note Register.
SECTION 4.02. Paying Agents. The Company shall maintain one or more
Paying Agents for the payment of the principal of (and premium, if any) and
(interest, if any) on the Notes of each series as provided in the terms of the
Notes of such series. The Company agrees to keep the Trustee advised of the
name and location of each Paying Agent if such Paying Agent is not the Trustee.
The Paying Agents shall arrange for the payment, from funds furnished by the
Company pursuant to this Indenture, of the principal and interest with respect
to the Notes.
The Company hereby initially appoints The Bank of New York as the
Company's Paying Agent for the Book-Entry Notes (the "Paying Agent," which term
shall include any successor as Paying Agent for the Book-Entry Notes). The
Company reserves the right, subject to the terms of the Notes of any series, to
terminate any such appointment at any time as to such series and to appoint any
other Paying Agents in respect of the Notes of such series in such places as it
may deem appropriate.
SECTION 4.03. Provisions As To Paying Agents. (a) Whenever the
Company shall appoint a paying agent other than the Trustee with respect to the
Notes of any series, it will cause such paying agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section:
(1) that it will hold sums held by it as such
agent for the payment of the principal of (and premium, if
any) or any interest on the Notes of such series (whether
such sums have been paid to it by the Company or by any other
obligor on the Notes 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
and will notify the Trustee of the receipt of sums to be so
held;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the Notes
of such series) to make any payment of the principal of (or
premium, if any) or any interest on the Notes of such series
when the same shall be due and payable; and
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(3) that at any time when any such failure has
occurred and is continuing, it will, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it
will, on or before each due date of the principal of (and premium, if
any) or any interest on the Notes of any series, set aside, segregate
and hold in trust for the benefit of the persons entitled thereto a
sum sufficient to pay such principal (and premium, if any) or any
interest so becoming due until such sums shall be paid to such persons
or otherwise disposed of as herein provided. The Company will promptly
notify the Trustee of any failure to take such action.
(c) Whenever the Company shall have one or more paying
agents with respect to a series of Notes it will, on or prior to each
due date of the principal of (and premium, if any) or any interest on,
any Notes, deposit with a paying agent a sum sufficient to pay the
principal (an premium, if any) or any 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.
(d) Anything in this Section to the contrary
notwithstanding, the Company may, at any time for the purpose of
obtaining the satisfaction and discharge of this Indenture with
respect to one or more or all series of Notes hereunder, or for any
other reason, pay or cause to be paid to the Trustee all sums held in
trust for such series by it or any paying agent hereunder as required
by this Section, such sums to be held by the Trustee upon the trusts
herein contained, 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.
(e) Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided in
this Section is subject to the provisions of Sections 12.03 and 12.04.
SECTION 4.04. Offices for Notices, Etc. As long as any of the Notes
remain outstanding, the Company will designate and maintain an office or agency
where the Notes may be presented or surrendered for payment, registration of
transfer and for exchange as provided in this Indenture and where notices and
demands to or upon the Company in respect of the Notes or of this Indenture may
be served, other than demands for payment. The Company will give to the Trustee
notice of the location of each such office or agency and of any change in the
location thereof. In case the Company shall fail to maintain any such office or
agency, or shall fail to give such notice of the location or of any change in
the location thereof, such notices and demands may be served at the corporate
trust office of the Trustee specified in Section 14.03 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Notes of one or more series may be presented or
surrendered for any or all such
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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 accordance with
the requirements set forth above for Notes of any series for such purposes. The
Company will give prompt written notice to the Trustee and the holders of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the principal corporate trust
office of The Bank of New York, 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx
00000 as the office of the Company where Notes may be presented for payment,
for registration or transfer and for exchange as in this Indenture provided and
where notices and demands to or upon the Company in respect of the Notes or of
this Indenture may be served.
SECTION 4.05. Determination of Additional Amounts. If Notes provide
for the payment of Additional Amounts, the Company will pay to the holder of
any Note, Additional Amounts as provided therein. 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 Note or net proceeds received on
the sale or exchange of any Note, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in this Section to
the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to the provisions of this Section and
express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
If Notes provide for the payment of Additional Amounts, at least 10
days prior to the first interest payment date with respect to those Notes (or,
if the Notes of that series will not bear interest prior to maturity (including
any maturity occurring by reason of call of redemption or otherwise), the first
day on which a payment of principal and any premium is made), and at least 10
days prior to each date of payment of principal and any premium or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's principal paying agent or paying agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee and such paying
agent or paying agents whether such payment of principal of (and premium, if
any) or any interest on those Notes shall be made to holders those Notes who
are United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Notes. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
holders of those Notes and the Company will pay to the Trustee or such paying
agent the Additional Amounts required by this Section. The Company covenants to
indemnify the Trustee and any paying agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
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ARTICLE FIVE.
NOTEHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE.
SECTION 5.01. Noteholder Lists. The Company will furnish or cause
to be furnished to the Trustee, semiannually, not later than January 15 and
July 15 in each year and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a
list in such form as the Trustee may reasonably require containing all the
information in the possession or control of the Company or any of its Paying
Agents (other than the Trustee in its capacity as a Paying Agent), as to the
names and addresses of the holders of Notes of particular series specified by
the Trustee as of a date not more than 15 days prior to the time such
information is furnished, provided, however, that if and so long as the Trustee
shall be the Note Registrar, such list shall not be required to be furnished.
At the Trustee's direction, the Company will furnish copies of the same reports
to the Depository.
SECTION 5.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and
addresses of the holders of each series of Notes (i) contained in the
most recent list furnished to it as provided in Section 5.01, (ii)
received by the Trustee in its capacity as Note Registrar or a Paying
Agent or (iii) filed with it within the preceding two years pursuant
to Section 5.04(d). The Trustee may destroy any list furnished to it
as provided in Section 5.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Notes (hereinafter
referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has
owned a Note 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 Notes
of a particular series (in which case the applicants must hold Notes
of such series) or with holders of all Notes with respect to their
rights under this Indenture or under such Notes and it 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:
(1) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section, or
(2) inform such applicants as to the approximate
number of holders of Notes of such series or all Notes, as
the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee, in
accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such
noteholders the form of proxy or other communication, if any,
specified in such application.
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If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each holder of Notes of such
series or all Notes, as the case may be, whose name and address appear
in the information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section a copy of the
form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five
days after such tender, the Trustee shall mail to such applicants and
file with the Securities and Exchange Commission (the "Commission"),
together with a copy of the material to be mailed, a written statement
to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Notes of such
series or all Notes, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If the Commission after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to
all such 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) Each and every holder of Notes, by receiving and
holding the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any Paying Agent, Note Registrar, or
any agent of the Company or of the Trustee shall be held accountable
by reason of the disclosure of any such information as to the names
and addresses of the holders of Notes in accordance with the
provisions of subsection (b) of this Section, regardless of the source
from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to
a request made under said subsection (b).
SECTION 5.03. Reports by the Company. The Company shall, so long
as the Notes are Outstanding:
(a) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) 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 such sections, then to file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by said Commission, such of the
supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities
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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 the rules and regulations prescribed from time to time
by the Commission, such additional information, documents, and reports
with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit by mail to all the holders of Notes of each
series in the manner and to the extent provided in Section 5.04(d)
with respect to reports pursuant to Section 5.04(a), within thirty
days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
with respect to each such series of Notes pursuant to subsections (a)
and (b) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
SECTION 5.04. Reports By The Trustee.
(a) On or about July 15, 2001 and on or before July 15 of
each year thereafter, so long as any Notes are outstanding hereunder,
the Trustee shall transmit to the holders of Notes, as provided in
subsection (b) of this Section, a brief report dated as of the
preceding May 15, with respect to any of the following events which
may have occurred within the previous 12 months (but if no such event
has occurred within such period no report needs to be transmitted):
(1) any change in its eligibility under Section
7.09, and its qualifications under Section 7.08;
(2) the character and amount of any advances
(and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such)
which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or
charge, prior to that of the Notes, on any property or funds
held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than
one-half of 1% of the principal amount of the Notes for any
series outstanding on the date of such report;
(3) any change to the amount, interest rate, and
maturity date of all other indebtedness owing by the Company
(or by any other obligor on the Notes) to the Trustee in its
individual capacity, on the date of such report, with a brief
description of any property held as collateral security
therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in paragraphs
(2), (3), (4), or (6) of subsection (b) of Section 7.13;
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(4) any change to the property and funds, if
any, physically in the possession of the Trustee as such on
the date of such report;
(5) the creation of or any material change to a
relationship specified in paragraph (1) through (10) of
Section 7.08(c);
(6) any additional issue of Notes which it has
not previously reported; and
(7) any action taken by the Trustee in the
performance of its duties under this Indenture which it has
not previously reported and which in its opinion materially
affects the Notes, except action in respect of a default,
notice of which has been or is to be withheld by it in
accordance with the provisions of Section 6.04.
(b) The Trustee shall transmit to the holders of Notes of
any series, as provided in subsection (c) of this Section, a brief
report with respect to the character and amount of any advances (and
if the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the
last report transmitted pursuant to the provisions of subsection (a)
of this Section (or if no such report has yet been so transmitted,
since the date of execution of this Indenture), for the reimbursement
of which it claims or may claim a lien or charge prior to that of the
Notes of any series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this
subsection (b), except that the Trustee for each series shall not be
required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal
amount of Notes for such series Outstanding at such time, such report
to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted
by mail:
(1) to all holders of Notes, as the names and
addresses of such holders appear in the Note Register;
(2) except in the case of reports pursuant to
subsection (b) of this Section, to all holders of Notes whose
names and addresses are at that time preserved by the
Trustee, as provided in 5.02(a).
(d) A copy of each such report shall, at the time of such
transmission to holders of Notes, be filed by the Trustee with each
stock exchange upon which the Notes are listed and also with the
Commission and the Company. The Company agrees to promptly notify the
Trustee when and as the Notes become listed on any stock exchange.
(e) So long as the Notes are issued in Book-Entry form,
all reports described in this Article Five shall be delivered to the
Depository, as holder of the Notes.
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ARTICLE SIX.
REMEDIES.
SECTION 6.01. Events of Default. The term "Event of Default,"
whenever used herein, 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 pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company
under the Federal Bankruptcy laws, as now constituted or as hereafter
amended, and the continuance of any such decree or order unstayed and
in effect for a period of 60 consecutive days; or
(b) the filing by the Company of a petition or answer or
consent seeking relief under the Federal Bankruptcy laws, as now
constituted or hereafter amended, or the consent by it to the
institution of proceedings thereunder or to the filing of any such
petition.
SECTION 6.02. Acceleration of Maturity, Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such case
the Trustee or the holders of not less than 25% in principal amount of the
Notes Outstanding may declare the principal (or, if any of the Notes of that
series are Original Issue Discount Notes, such portion of the principal amount
of such Notes as may be specified in the terms thereof) of all the Notes to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the noteholders), and upon any such declaration such
principal (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the holders of a majority
in principal amount of the Notes Outstanding, 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 all
Notes,
(ii) the principal of any Notes which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by such Notes,
(iii) to the extent that payment of such interest
is lawful, interest upon overdue installments of interest at
the rate borne by such Notes, and
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(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 have been cured or waived as
provided in Section 6.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of any such a declaration of acceleration,
or rescission and annulment thereof, with respect to Notes of a series all or
part of which is represented by a global Note, the Trustee shall establish a
record date for determining holders of Notes of such series Outstanding
entitled to join in such declaration of acceleration, or rescission and
annulment, as the case may be, which record date shall be at the close of
business on the day the Trustee receives such declaration of acceleration, or
rescission and annulment, as the case may be. The holders on such record date,
or their duly designated proxies, and only such persons, shall be entitled to
join in such declaration of acceleration, or rescission and annulment, as the
case may be, whether or not such holders remain holders after such record date,
provided that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having been obtained prior to the day which is 90 days
after such record date, such declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action
by any holder be cancelled and of no further effect. Nothing in this paragraph
shall prevent a holder, or a proxy of a holder, from giving, after expiration
of such 90-day period, a new declaration of acceleration, or rescission or
annulment thereof, as the case may be, that is identical to a declaration of
acceleration, or rescission or annulment thereof, which has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 6.02.
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if:
(a) default is made in the payment of any installment of
interest on any Notes 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
any Note at the maturity thereof, including any maturity occurring by
reason of a call for redemption or otherwise, or
(c) the Company defaults in the performance, or breach,
of any of its other covenants or agreements in the Note or in this
Indenture and such default or breach continues for a period of 90 days
after the date on which written notice of such Company to remedy the
same and stating that such notice is a "Notice of Default" hereunder,
shall have been given by registered mail to the Company by the
Trustee, or to the Company
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and the Trustee by the holders of at least 25% in aggregate principal
amount of the Notes at the time Outstanding,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
holders of such Notes appertaining thereto, the whole amount that shall have
become due and payable on such Notes for principal and interest, with interest
upon the overdue principal, if any, and, to the extent that payment of such
interest shall be legally enforceable, upon overdue installments of interest,
at the rate borne by such Notes; 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 sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the
same against the Company or any other obligor upon the Notes 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 the Notes, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
noteholders 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.
Notwithstanding any provision in this Section 6.03 to the contrary,
neither the Trustee nor the noteholders shall have the right to accelerate
payment of any Notes of any series Outstanding or otherwise to declare such
Notes immediately due and payable, except as set forth in Section 6.02 above.
SECTION 6.04. Trustee May File Proofs of Claim.
In the case of the pendency of a receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Notes or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes
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 or interest) 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 any interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the holders of Notes allowed in such judicial proceeding; and
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(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator or sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
holder of Notes 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 of
Notes, to pay to the Trustee any amount due to 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 7.06. To the
extent that such payment of reasonable compensation, expenses, disbursements,
advances and other amounts out of the estate in any such proceedings shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, moneys, securities
and other property which the holders of the Notes may be entitled to receive in
such proceedings, whether in liquidation or under any plan or reorganization or
arrangements or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any holder of a Note
any plan of reorganization, arrangement, adjustment or compensation affecting
the Notes or the rights of any holder thereof, or to authorize the Trustee to
vote in respect of the claim of any holder of a Note in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes 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 Notes in respect of which such judgment has been
recovered.
SECTION 6.06. 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 (and premium, if any) or any
interest, upon presentation of the Notes, as the case may be, 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 7.06;
SECOND: Subject to Article Fifteen, to the payment of the
amounts then due and unpaid for principal of (and premium, if any) and
any interest on the Notes, 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
Notes, for principal (and premium, if any) and any interest,
respectively; and
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THIRD: To the Company or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same.
SECTION 6.07. Limitation on Suits. No holder of any Note 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 Default;
(b) the holders of not less than 25% in aggregate
principal amount of the Outstanding Notes, 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
reasonable indemnity 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 Notes;
it being understood and intended that no one or more such holders of Notes
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other of such holders of Notes or to obtain or to seek to obtain priority
or preference over any other of such holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such holders of Notes.
SECTION 6.08. Unconditional Right of Noteholders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture but subject to the provisions of Article Fifteen, the holder of any
Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 3.02
and 4.01) any interest on such Notes on the respective stated maturities
expressed in such Note (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such holder.
SECTION 6.09. Restoration of Rights and Remedies. If the Trustee or
any holder of a Note 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 the Company, the Trustee and the
holders of Notes shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and
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remedies of the Trustee and the holders shall continue as though no such
proceeding has been instituted.
SECTION 6.10. Rights and Remedies Cumulative. Except as provided in
Section 2.08, no right or remedy herein conferred upon or reserved to the
Trustee or to the holders of Notes 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 6.11. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any holder of any Note to exercise any right or remedy
accruing upon any Default shall impair any such right or remedy or constitute a
waiver of any such Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the holders of Notes may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the holders of Notes, as the case may be.
SECTION 6.12. Control by Noteholders. The holders of a majority in
principal amount of Outstanding Notes of each 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 Notes of such series, provided that
(a) such direction shall not be in conflict with any
statute, rule of law or with this Indenture;
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 7.01, the
Trustee need not take any action which it in good faith determines
might involve it in personal liability or be unjustly prejudicial to
the holders not consenting.
Upon receipt by the Trustee of any such direction with respect to
Notes of a series all or part of which is represented by a Global Note, the
Trustee shall establish a record date for determining holders of Outstanding
Notes of such series entitled to join in such direction, which record date
shall be at the close of business on the day the Trustee receives such
direction. The holders on such record date, or their duly designated proxies,
and only such persons, shall be entitled to join in such direction, whether or
not such holders remain holders after such record date, provided that, unless
such majority in principal amount shall have been obtained prior to the day
which is 90 days after such record date, such direction shall automatically and
without further action by any holder be cancelled and of no further effect.
Nothing in this paragraph shall prevent a holder, or a proxy of a holder, from
giving, after expiration of such 90-day period, a new direction identical to a
direction which has been cancelled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 6.12.
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SECTION 6.13. Waiver of Past Defaults. The holders of a majority in
principal amount of the Outstanding Notes of each series may, on behalf of the
holders of all the Notes, waive any past default hereunder and its
consequences, except a default
(a) in the payment of the principal of (premium, if any)
or any interest on any Note, or
(b) in respect of a covenant or provision hereof that
pursuant to Article Ten cannot be modified or amended without the
consent of the holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any
Default or 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 6.14. Undertaking for Costs. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Trustee, to any suit instituted by any holder, or
group of holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Notes, or to any suit instituted by any holder of any Notes for
the enforcement of the payment of the principal of (premium, if any) or any
interest on any Note on or after the respective stated maturities expressed in
such Note (or, in the case of redemption, on or after the redemption date
except, in the case of a partial redemption, with respect to the portion not so
redeemed).
SECTION 6.15. 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 laws 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 benefits 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.
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ARTICLE SEVEN.
CONCERNING THE TRUSTEE.
SECTION 7.01. Duties And Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of a Default or
an Event of Default with respect to a particular series of Notes and
after the curing of all Defaults or Events or Default with respect to
such series which may have occurred, undertakes to perform such duties
and only such duties with respect to such series as are specifically
set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee and in the
absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any 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 provisions 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 a Default or an Event of Default with respect
to a particular series of Notes has occurred (which has not been
cured), the Trustee shall exercise with respect to such series such of
the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provisions 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 Section 7.01 (c) shall not be construed
to limit the effect of Section 7.01 (a);
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
or Officers, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(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
Notes Outstanding pursuant to Section 6.12 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.
(d) No provision of this Indenture shall be construed as
requiring the Trustee to expend or risk its own funds or otherwise to
incur any personal financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
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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.
SECTION 7.02. Reliance on Documents, Opinions, Etc. Subject to the
provisions of Section 7.01:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by a Company
Order; and any Board Resolution may be evidenced to the Trustee by a
copy thereof certified by the Secretary or an Assistant Secretary of
the Company; and whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(c) the Trustee may consult with counsel of its selection
and the written advice of counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with such written advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the noteholders, pursuant to the
provisions of this Indenture, unless such noteholders shall have
offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) 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 or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company pertaining to the Notes, personally or by
agent or attorney;
(f) 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; and
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(g) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
SECTION 7.03. No Responsibility for Recitals, Etc. The recitals
contained herein and in the Notes other than the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes provided that the Trustee shall not be relieved of its duty to
authenticate Notes only as authorized by this Indenture. The Trustee shall not
be accountable for the use or application by the Company of Notes or the
proceeds thereof.
SECTION 7.04. Ownership of Notes. The Trustee, or any agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Notes with the same rights, subject to Section 7.08 and
Section 7.13, it would have if it were not Trustee or an agent of the Company
or of the Trustee.
SECTION 7.05. Moneys To Be Held in Trust. Subject to the provisions
of Section 12.04 hereof, all moneys received by the Trustee or any Paying Agent
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. Neither the Trustee nor any Paying
Agent shall be under any liability for interest on any moneys received by it
hereunder except such as it may agree with the Company to pay thereon.
SECTION 7.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation, and, except as otherwise
expressly provided, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all other persons not regularly in its employ) except any
such expense, disbursement or advance as may arise from its negligence or bad
faith. If any property other than cash shall at any time be subject to the lien
of this Indenture, the Trustee, if and to the extent authorized by a
receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax liens or other prior liens or encumbrances thereon. The Company
also covenants to indemnify the Trustee, its officers, directors and employees
for, and to hold them harmless against, any loss, liability or reasonable
expense incurred without negligence or bad faith on the part of the Trustee or
such officer, director and employee arising out of or in connection with the
acceptance or administration of this trust or the performance of their duties
hereunder, including the reasonable costs and expenses of defending themselves
against any claim of liability in the premises. The obligations of the Company
under this Section to compensate the Trustee and to pay or reimburse the
Trustee for reasonable expenses, disbursements and advances shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Notes upon all property and funds held
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or collected by the Trustee as such, except funds held in trust for the benefit
of the holders of particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default, the expenses and the compensation for the services are intended to
constitute expenses of administration under any bankruptcy law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 7.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under
the provisions of this Indenture upon the faith thereof.
SECTION 7.08. Conflicting Interest of Trustee.
(a) If the Trustee has or shall acquire any conflicting
interest, as defined in this Section, it shall, within 90 days after
ascertaining that it has such conflicting interest, and if an Event of
Default as defined in subsection (c) of this Section to which such
conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of such 90-day period, either
eliminate such conflicting interest or resign in the manner and with
the effect specified in Section 7.10.
(b) (1) In the event that the Trustee shall fail to
comply with the provisions of subsection (a) of this Section,
the Trustee shall, within 10 days after the expiration of such
90-day period, transmit notice of such failure in the manner
and to the extent set forth in Section 5.04(c), to all
noteholders of the series affected by the conflicting
interest.
(2) Subject to the provisions of Section 6.14,
unless the Trustee's duty to resign is stayed as provided
below in this Section, any noteholder who has been a bona
fide holder of Notes of any series affected by the
conflicting interest for at least six months may, on behalf
of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of such
Trustee, and the appointment of a successor, if such Trustee
fails, after written request thereof by such holder to comply
with the provisions of subsection (a) of this Section.
(c) For the purposes of this Section the Trustee shall be
deemed to have a conflicting interest with respect to Notes of a
particular series if a default (under the terms of this Indenture, but
exclusive of any period of grace or requirement of notice) has
occurred with respect to such Notes, and:
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(1) the Trustee is trustee under this Indenture
with respect to the Outstanding Notes of any other series or
is trustee under another indenture under which any other
securities, or certificates of interest or participation in
any other securities, of the Company are outstanding, unless
such other indenture is a collateral trust indenture under
which the only collateral consists of Notes issued under this
Indenture; provided, however, that there shall be excluded
from the operation of this paragraph, (A) this Indenture with
respect to Notes of any other series, and (B) any other
indenture or indentures under which other securities, or
certificates of interest or participation in other
securities, of the Company are outstanding if:
(i) this Indenture is, and, if
applicable, such other indenture or indentures are,
wholly unsecured and rank equally, and such other
indenture or indentures are hereafter qualified
under the Trust Indenture Act, as in effect at the
time of such qualification, unless the Commission
shall have found and declared by order pursuant to
subsection (b) of Section 305 or subsection (c) of
Section 307 of the Trust Indenture Act that
differences exist between the provisions of this
Indenture with respect to such particular series and
(A) one or more other series in this Indenture or
(B) the provisions of such other indenture or
indentures which are so likely to involve a material
conflict of interest as to make it necessary in the
public interest or for the protection of investors
to disqualify the Trustee from acting as such under
this Indenture with respect to such particular
series and such other series or such other indenture
or indentures, or
(ii) the Company shall have sustained
the burden of proving, on application to the
Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with
respect to such particular series and such other
series or under this Indenture and such other
indenture or indentures is not so likely to involve
a material conflict of interest as to make it
necessary in the public interest or for the
protection of investors to disqualify the Trustee
from acting as such under this Indenture with
respect to such particular series and such other
series or under this Indenture and such other
indenture or indentures;
(2) the Trustee or any of its directors or
executive officers is an underwriter for the Company;
(3) the Trustee directly or indirectly controls
or is directly or indirectly controlled by or is under direct
or indirect common control with an underwriter for the
Company;
(4) the Trustee or any of its directors or
executive officers is a director, officer, partner, employee,
appointee, or representative of the Company, or of an
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underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting,
except that (A) one individual may be a director or an
executive officer or both of the Trustee and a director or an
executive officer or both of the Company, but may not be at
the same time an executive officer of both the Trustee and
the Company; (B) if and so long as the number of directors of
the Trustee in office is more than nine, one additional
individual may be a director or an executive officer or both
of the Trustee and a director of the Company; and (C) the
Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent, or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph (1) of
this subsection (c), to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any
director, partner, or executive officer thereof, or 20% or
more of such voting securities is beneficially owned,
collectively, by any two or more of such persons, or 10% or
more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Company or by any
director, partner, or executive officer thereof, or is
beneficially owned, collectively, by any two or more such
persons;
(6) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default as hereinafter described in this subsection, (A) 5%
or more of the voting securities, or 10% or more of any other
class of security, of the Company, not including the Notes
issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or
(B) 10% or more of any class of security of an underwriter
for the Company;
(7) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default as hereinafter described in this subsection, 5% or
more of the voting securities of any person who, to the
knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default as hereinafter described in this subsection, 10% or
more of any class of security of any person who, to the
knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns on the date of default of
the Notes as defined in subsection (c) of this Section or any
anniversary of such default while such default remains
outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any
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other similar capacity, an aggregate of 25% or more of the
voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of
which would have constituted a conflicting interest under
paragraph (6), (7) or (8) of this subsection (c). As to any
such securities of which the Trustee acquired ownership
through becoming executor, administrator, or testamentary
trustee of an estate which included them, the provisions of
the preceding sentence shall not apply, for a period of not
more than two years from the date of such acquisition, to the
extent that such securities included in such estate do not
exceed 25% of such voting securities or 25% of any such class
of security. Promptly after the dates of any such default and
annually in each succeeding year that the Notes of any series
hereunder remain in default, the Trustee shall make a check
of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Company
fails to make payment in full of principal of or interest on
any of the Notes when and as the same become due and payable,
and such failure continues for thirty days thereafter, the
Trustee shall make a prompt check of its holdings of such
securities in any of the above-mentioned capacities as of the
date of the expiration of such thirty day period, and after
such date, notwithstanding the foregoing provisions of this
paragraph (9), all such securities so held by the Trustee,
with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for
the purposes of paragraphs (6), (7) and (8) of this
subsection (c); or
(10) except under the circumstances described in
subsections (1), (3), (4), (5) or (6) of Section 7.13(b), the
Trustee shall be or shall become a creditor of the Company.
The specification of percentages in paragraphs (5) to (9),
inclusive, of this subsection (c) shall not be construed as
indicating that the ownership of such percentages of the securities
of a person is or is not necessary or sufficient to constitute direct
or indirect control for the purposes of paragraph (3) or (7) or this
subsection (c).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall
include only such securities as are generally known as corporate
securities, but shall not include any note or other evidence of
indebtedness issued to evidence an obligation to repay moneys lent to
a person by one or more banks, trust companies or banking firms, or
any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in
default when a default in payment of principal shall have continued
for thirty days or more and shall not have been cured; and (C) the
Trustee shall not be deemed to be the owner or holder of (i) any
security which it holds as collateral security (as trustee or
otherwise) for any obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral
security under this Indenture, irrespective of any default hereunder,
or (iii) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar
representative capacity.
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(d) For the purposes of this Section:
(1) The term "underwriter" when used with
reference to the Company shall mean every person who, within
one year prior to the time as of which the determination is
made, has purchased from the Company with a view to, or has
offered or has sold for the Company in connection with, the
distribution of any security of the Company outstanding at
such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has
participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of the
usual and customary distributors' or sellers' commission.
(2) The term "director" shall mean any director
of a corporation or any individual performing similar
functions with respect to any organization whether
incorporated or unincorporated.
(3) The term "person" shall mean an individual,
a corporation, a partnership, an association, a joint-stock
company, a trust, an unincorporated organization, or a
government or political subdivision thereof. As used in this
paragraph, the term "trust" shall include only a trust where
the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" shall mean any
security presently entitling the owner or holder thereof to
vote in the direction or management of the affairs of a
person, or any security issued under or pursuant to any
trust, agreement or arrangement whereby a trustee or trustees
or agent or agents for the owner or holder of such security
currently are entitled to vote in the direction or management
of the affairs of a person.
(5) The term "Company" shall mean any obligor
upon the Notes.
(6) The term "executive officer" shall mean the
president, every vice president, every trust officer, the
cashier, the secretary, and the treasurer of a corporation,
and any individual customarily performing similar functions
with respect to any organization whether incorporated or
unincorporated but shall not include the chairman of the
board of directors.
(7) The percentages of voting securities and
other securities specified in this Section shall be
calculated in accordance with the following provisions:
(i) A specified percentage of the
voting securities of the Trustee, the Company or any
other person referred to in this Section (each of
whom is referred to as a "person" in this paragraph)
means such amount of the outstanding voting
securities of such person as entitles the holder or
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holders thereof to cast such specified percentage of
the aggregate votes which the holders of all the
outstanding voting securities of such person are
entitled to cast in the direction or management of
the affairs of such person.
(ii) A specified percentage of a class
of securities of a person means such percentage of
the aggregate amount of securities of the class
outstanding.
(iii) The term "amount", when used in
regard to securities, means the principal amount if
relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number
of units if relating to any other kind of security.
(iv) The term "outstanding" means issued
and not held by or for the account of the issuer.
The following securities shall not be deemed
outstanding within the meaning of this definition:
(A) securities of an issuer
held in a sinking fund relating to
securities of the issuer of the same class;
(B) securities of an issuer
held in a sinking fund relating to another
class of securities of the issuer, if the
obligation evidenced by such other class of
securities is not in default as to
principal or interest or otherwise;
(C) securities pledged by the
issuer thereof as security for an
obligation of the issuer not in default as
to principal or interest or otherwise; and
(D) securities held in escrow
if placed in escrow by the issuer thereof;
provided, however, that any voting securities of an
issuer shall be deemed outstanding if any person
other than the issuer is entitled to exercise the
voting rights thereof.
(v) A security shall be deemed to be of
the same class as another security if both
securities confer upon the holder or holders thereof
substantially the same rights and privileges,
provided, however, that in the case of secured
evidences of indebtedness, all of which are issued
under a single indenture, differences in the
interest rates or maturity dates of various series
thereof shall not be deemed sufficient to constitute
such series different classes and provided, further,
that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or
maturity
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dates thereof shall not be deemed sufficient to
constitute them securities of different classes,
whether or not they are issued under a single
indenture.
(e) Except in the case of a default in the payment of the
principal of or interest on any Notes of any series, or in the payment
of any sinking or purchase fund installment, the Trustee shall not be
required to resign as provided by subsection (c) of this Section if
the Trustee shall have sustained the burden of proving, on application
to the Commission and after opportunity for hearing thereon, that (i)
such default may be cured or waived during a reasonable period and
under the procedures described in such application, and (ii) a stay of
the Trustee's duty to resign will not be inconsistent with the
interests of the holders of the Notes of any series issued hereunder.
The filing of such an application shall automatically stay the
performance of the duty to resign until such Commission orders
otherwise. Any resignation of the Trustee shall become effective only
upon the appointment of a successor trustee and such successor's
acceptance of such appointment as provided in Section 7.11.
(f) If Section 310(b) of the Trust Indenture Act is
amended at any time after the date of this Indenture to change the
circumstances under which a Trustee shall be deemed to have a
conflicting interest with respect to the Notes of any series or to
change any of the definitions in connection therewith, this Section
7.08 shall be automatically amended to incorporate such changes,
unless such changes would cause any Trustee then acting as Trustee
hereunder with respect to any Outstanding Notes to be deemed to have a
conflicting interest, in which case such changes shall be incorporated
herein only to the extent that such changes (i) would not cause the
Trustee to be deemed to have a conflicting interest, or (ii) are
required by law.
SECTION 7.09. Eligibility of Trustee. There shall at all times be a
Trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States or of any State or Territory thereof or of
the District of Columbia, which (a) is authorized under such laws to exercise
corporate trust powers and (b) is subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority and (c) shall
have at all times a combined capital and surplus of not less than five million
dollars. If such corporation publishes reports of condition at least annually,
pursuant to law, or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation at any time shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation or Removal of Trustee. (a) The Trustee,
or any trustee or trustees hereafter appointed, may at any time resign with
respect to one or more or all series of Notes by giving written notice of
resignation to the Company. Upon receiving such notice of resignation the
Company shall promptly appoint a successor trustee with respect to the
applicable series of Notes by written instrument, in duplicate, executed by
order of the Board of Directors of the Company, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so
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appointed and have accepted appointment within thirty days after the receipt of
such notice of resignation by the Company, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor trustee,
or any holder of Notes who has been a bona fide holder of a Note or Notes of
the applicable series for at least six months may subject to the provisions of
Section 6.04, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the
provisions of Section 7.08 with respect to any series of
Notes after written request therefor by the Company or by any
noteholder who has been a bona fide holder of a Note or Notes
of such series for at least six months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 7.09 with respect
to any series of Notes and shall fail to resign after written
request therefor by the Company or by any such noteholder, or
(3) the Trustee shall become incapable of acting
with respect to any series of Notes, 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, the Company may remove the Trustee with
respect to the applicable series of Notes and appoint a successor
trustee with respect to such series by written instrument, in
duplicate, executed by order of the Board of Directors of the Company,
one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.04, any noteholder of such series who has been
a bona fide holder of a Note or Notes of the applicable series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect
to such series. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal
amount of the Notes of all series (voting as one class) at the time
outstanding may at any time remove the Trustee with respect to Notes
of all series and appoint a successor trustee with respect to the
Notes of all series.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions
of this Section shall become effective upon the appointment of a
successor trustee and the acceptance of appointment by the successor
trustee as provided in Section 7.11.
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(e) The Trustee shall be paid all amounts owed to it upon
its removal or resignation.
SECTION 7.11. Acceptance by Successor Trustee. Any successor
trustee appointed as provided in Section 7.10 shall execute, acknowledge and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee herein; but, nevertheless, on the
written request of the Company or of the successor trustee, the trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 7.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act. Upon request of any such successor trustee, the Company shall execute any
and all instruments in writing in order more fully and certainly to vest in and
confirm to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected by such trustee to secure any amounts then due it pursuant to
the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee with
respect to the Notes of one or more (but not all) series, the Company, the
predecessor Trustee and each successor trustee with respect to the Notes of any
applicable series shall execute and deliver a Supplemental Indenture which
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Notes of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and 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. The Trustee shall not be liable for the acts or
omissions of any successor trustee.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the Company shall give notice of the succession of such trustee
hereunder to all holders of Notes of any applicable series in the manner
provided in Section 1.02. If the Company fails to give such notice in the
prescribed manner within 10 days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be so given
at the expense of the Company.
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SECTION 7.12. Successor By Merger, Etc. Any corporation into which
the Trustee may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Notes
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 Notes so
authenticated with the same effect as if such successor trustee had itself
authenticated the Notes.
SECTION 7.13. Limitations on Rights of Trustee as Creditor.
(a) Subject to the provisions of subsection (b) of this
Section, if the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company or of any other
obligor on the Notes within three months prior to a default, as
defined in subsection (c) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the
Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the holders of the Notes:
(1) an amount equal to any and all reductions in
the amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three months' period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in
respect of any claim as such creditor, either as security
therefor, or in satisfaction or composition thereof, or
otherwise, after the beginning of such three months' period,
or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(3) to retain for its own account (i) payments
made on account of any such claim by any person (other than
the Company) who is liable thereon, and (ii) the proceeds of
the bona fide sale of any such claim by the Trustee to a
third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed
against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law;
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(4) to realize, for its own account, upon any
property held by it as security for any such claim, if such
property was so held prior to the beginning of such three
months' period;
(5) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if such
claim was created after the beginning of such three months'
period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default as defined in subsection (c) of
this Section would occur within three months; or
(6) to receive payment on any claims referred to
in paragraph (4) or (5), against the release of any property
held as security for such claim as provided in such paragraph
(4) or (5), as the case may be, to the extent of the fair
value of such property.
For the purposes of paragraphs (4), (5) and (6) above,
property substituted after the beginning of such three months' period
for property held as security at the time of such substitution shall,
to the extent of the fair value of the property released, have the
same status as the property released, and, to the extent that any
claim referred to in any of such paragraphs is created in renewal of
or in substitution for or for the purpose of repaying or refunding any
pre-existing claim of the Trustee as such creditor, such claim shall
have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall
be apportioned between the Trustee, the noteholders and the holders of
other indenture securities in such manner that the Trustee, the
noteholders and the holders of other indenture securities realize, as
a result of payments from such special account and payments of
dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11
of the United States Code or applicable State law, the same percentage
of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting
to the respective claims of the Trustee, the noteholders and the
holders of other indenture securities, dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to Title 11 of the United States Code or
applicable State law, but after crediting thereon receipts on account
of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership
or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable State law, whether such distribution
is made in cash, securities, or other property, but shall not include
any such distribution with respect to the secured portion, if
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any, of such claim. The court in which such bankruptcy, receivership,
or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, the noteholders and the holders
of other indenture securities, in accordance with the provisions of
this paragraph, the funds and property held in such special account
and the proceeds thereof, or (ii) in lieu of such apportionment, in
whole or in part, to give to the provisions of this paragraph due
consideration in determining the fairness of the distributions to be
made to the Trustee, the noteholders and the holders of other
indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such
claims or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the
provisions of this subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been removed
prior to the beginning of such three months' period it shall be
subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of
claim which would have given rise to the obligation to
account, if such Trustee had continued as trustee, occurred
after the beginning of such three months' period; and
(ii) such receipt of property or reduction of
claim occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of
subsection (a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities
issued under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction, or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or
of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances
surrounding the making thereof is given to the noteholders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
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(4) an indebtedness created as a result of
services rendered or premises rented; or an indebtedness
created as a result of goods or securities sold in a cash
transaction as defined in subsection (c) of this Section;
(5) the ownership of stock or of other
securities of a corporation organized under the provisions of
Section 25(a) of the Federal Reserve Act, as amended, which
is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances; or
obligations which fall within the classification of
self-liquidating paper as defined in subsection (c) of this
Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to
make payment in full of the principal of (or premium, if any)
or interest upon any of the Notes when and as such principal
(or premium, if any) or interest becomes due and payable.
(2) The term "other indenture securities" shall
mean securities upon which the Company is an obligor (as
defined in the Trust Indenture Act of 1939) outstanding under
any other indenture, (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar
to the provisions of subsection (a) of this Section, and (C)
under which a default exists at the time of the apportionment
of the funds and property held in the special account
referred to in such subsection (a).
(3) The term "cash transaction" shall mean 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.
(4) The term "self-liquidating paper" shall mean
any draft, xxxx of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Company for the
purposes of financing the purchase, processing, manufacture,
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.
(5) The term "Company" shall mean any obligor
upon the Notes.
SECTION 7.14. Notice of Default. Within 90 days after the
occurrence of any default hereunder with respect to Notes of any series, the
Trustee shall transmit to all noteholders
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of such series, in the manner and to the extent provided in Section 1.02,
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 any
interest of any Notes of such series, or on the payment of any sinking or
purchase fund installment, 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 and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interests of the
noteholders of such series; and provided, further, that in the case of any
default of the character specified in clause (c) of Section 6.03 no such notice
to noteholders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, a Default or
an Event of Default with respect to Notes of such series.
ARTICLE EIGHT.
CONCERNING THE NOTEHOLDERS.
SECTION 8.01. Action by Noteholders. Whenever in this Indenture it
is provided that the holders of a specified percentage in aggregate principal
amount of the Notes of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by noteholders in person or by agent or proxy appointed in writing, or
(b) by the record of the holders of Notes voting in favor thereof at any
meeting of noteholders duly called and held in accordance with the provisions
of Article Nine, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of noteholders.
In determining whether the holders of a specified percentage in
aggregate principal amount of the Notes have taken any action (including the
making of any demand or request, the waiving of any notice, consent or waiver
or the taking of any other action), the principal amount of a Note denominated
in a foreign currency or currency unit shall be the U.S. Dollar equivalent,
determined as of the date of original issuance of such Note, of the principal
amount of such Note.
SECTION 8.02. Proof of Execution By Noteholders. Subject to the
provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a noteholder or its agent or proxy shall be sufficient if made in
accordance with this Section 8.02. The fact and date of the execution by any
such person of any instrument may be proved by the certificate of any notary
public, or other officer of any jurisdiction authorized to take acknowledgments
of deeds or administer oaths, that the person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a witness to
such execution sworn to before any such notary or other such officer or by a
certificate of any officer of any trust company, bank, banker or recognized
securities dealer, satisfactory to the Trustee, who witnessed such execution.
If such execution is by an officer of a corporation, association or trust, a
trustee of a trust or a member of a partnership on behalf of such corporation,
association, trust or partnership, such certificate or affidavit shall also
constitute sufficient proof of his authority.
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The ownership of the Notes shall be proved by the Note Register or by
a certificate of the Note Registrar.
The record of any noteholders' meeting shall be proved in the manner
provided in Section 9.06.
SECTION 8.03. Who Are Deemed Absolute Owners. The Company, the
Trustee and any agent of the Company or of the Trustee may deem the holder of
any Note to be, and may treat him as, the absolute owner of such Note (whether
or not such Note shall be overdue and notwithstanding any notation of ownership
or other writing thereon), for the purpose of receiving payment of or on
account of the principal of and interest on such Note and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company
or of the Trustee shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being, or upon his order, shall be
valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Note.
SECTION 8.04. Company-Owned Notes Disregarded. In determining
whether the holders of the required aggregate principal amount of Notes have
concurred in any direction, consent or waiver under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes, or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Notes, shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Notes which a responsible officer of the Trustee knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Notes and that the pledgee is not a person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any such other obligor. In the case of a dispute as to such right, any decision
by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 8.05. Revocation of Consents; Future Noteholders Bound. At
any time prior to the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note the identifying number of
which is shown by the evidence to be included in the Notes the holders of which
have consented to such action may, by filing written notice with the Trustee at
its office and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Note. Except as aforesaid any such action taken
by the holder of any Note shall be conclusive and binding upon such holder and
upon all future holders and owners of such Note and of any Note issued in
exchange or substitution therefor irrespective of whether or not any notation
in regard thereto is made upon such Note. Any action taken by the holders of
the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Notes of each series affected
thereby.
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SECTION 8.06. Record Date. The Company may, but shall not be
obligated to, set a record date for purposes of determining the identity of
noteholders of any series entitled to vote or consent to any action by vote or
consent or to otherwise take any action under this Indenture authorized or
permitted under this Indenture. Such record date shall be the later of the date
twenty days prior to the first solicitation of such consent or vote or other
action or the date of the most recent list of holders of such Notes delivered
to the principal corporate trust office of the Trustee pursuant to Section 5.01
prior to such solicitation. If such a record date is fixed, those persons who
were noteholders at the close of business on such record date shall be entitled
to vote or consent or take such other action, or to revoke any such action,
whether or not such persons continue to be holders after such record date, and
for that purpose the outstanding Notes shall be computed as of such record
date.
ARTICLE NINE.
NOTEHOLDERS' MEETINGS.
SECTION 9.01. Purposes of Meetings. A meeting of noteholders of
any or all series may be called at any time and from time to time pursuant to
the provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to waive any default or
Event of Default hereunder and its consequences, or to take any other
action authorized to be taken by noteholders pursuant to any of the
provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of Section
10.02; or
(4) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate principal amount
of the Notes of any or all series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 9.02. Call of Meetings By Trustee. The Trustee may at any
time call a meeting of noteholders of any or all series to take any action
specified in Section 9.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, [or in London, England,] as the
Trustee shall determine. Notice of every meeting of the noteholders of any or
all series, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.02, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.
SECTION 9.03. Call of Meetings by Company or Noteholders. In case
at any time the Company, pursuant to a Board Resolution, or the holders of at
least 10% in aggregate principal amount of the Notes of any or all series, as
the case may be, then outstanding, shall have requested the Trustee to call a
meeting of noteholders of any or all series to take any action
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authorized in Section 9.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 30
days after receipt of such request, then the Company or the holders of such
Notes in the amount above specified may determine the time and the place in
said Borough of Manhattan, The City of New York, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in Section
9.02.
SECTION 9.04. Qualification For Voting. To be entitled to vote at
any meeting of noteholders a person shall be a holder of one or more Notes of a
series with respect to which a meeting is being held or a person appointed by
an instrument in writing as proxy by such a holder. The only persons who shall
be entitled to be present or to speak at any meeting of the noteholders shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 9.05. Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by noteholders as provided in Section 9.03, in which case the
Company or the noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote.
Subject to the provisions of Sections 8.01 and 8.04, at any meeting
each noteholder or proxy shall be entitled to one vote for each $1,000 (or the
U.S. Dollar equivalent thereof in connection with Notes issued in a foreign
currency or currency unit) Outstanding principal amount of Notes held or
represented by him, provided, however, that no vote shall be cast or counted at
any meeting in respect of any Note challenged as not outstanding and ruled by
the chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote except as a noteholder or proxy. Any meeting of
noteholders duly called pursuant to the provisions of Section 9.02 or 9.03 may
be adjourned from time to time, and the meeting may be held as so adjourned
without further notice.
SECTION 9.06. Voting. The vote upon any resolution submitted to
any meeting of noteholders shall be by written ballot on which shall be
subscribed the signatures of the noteholders or proxies and on which shall be
inscribed the identifying number or numbers or to which shall be attached a
list of identifying numbers of the Notes held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting.
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A record in duplicate of the proceedings of each meeting of noteholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 9.02. The record shall be signed and
verified by the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
ARTICLE TEN.
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures Without Consent of
Noteholders. The Company, and the Trustee may from time to time and at any time
enter into an indenture or Supplemental Indenture (which shall conform to the
provisions of the Trust Indenture Act of 1939) for one or more of the following
purposes:
(a) to evidence the succession of another corporation to
the Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Article Eleven hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of
the holders of all, or any series of, Notes, and to make the
occurrence, or the occurrence and continuance, of a Default in any of
such additional covenants, restrictions, conditions or provisions a
Default or an Event of Default with respect to Notes of any or all
series permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth, with such
period of grace, if any, and subject to such conditions as such
Supplemental Indenture may provide;
(c) to add to or change any of the provisions of this
Indenture to provide for the issuance under this Indenture of Notes,
whether or not then outstanding, in bearer form, to add, modify or
eliminate any restrictions on the payment of principal of Notes in
registered form, and to provide for exchangeability of such Notes with
Notes issued hereunder and to make all appropriate changes for such
purpose to permit or facilitate the issuance of Notes in
uncertificated form, provided any such action shall not adversely
affect the interests of the holders of Notes of any series in any
material respect;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any Supplemental Indenture which may
be defective or inconsistent with any other provision contained herein
or in any Supplemental Indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture as shall
not
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adversely affect the interests of the holders of the Notes including
provisions necessary or desirable to provide for or facilitate the
administration of the trusts hereunder;
(e) to evidence and provide for the acceptance and
appointment hereunder by a successor trustee with respect to the Notes
of one or more series and to add or change any 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 Section 7.11;
(f) to change or eliminate any provision of this
Indenture, provided that any such change or elimination (i) shall
become effective only when there is no Note outstanding of any series
created prior to the execution of such Supplemental Indenture which is
entitled to the benefit of such provision or (ii) shall not adversely
apply to any Note outstanding;
(g) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the Trust Indenture Act, or
under any similar Federal statute hereafter enacted, and to add to
this Indenture such other provisions as may be expressly permitted by
the Trust Indenture Act, excluding however, the provisions referred to
in Section 316(a)(2) of the Trust Indenture Act or any corresponding
provision in any similar Federal statute hereafter enacted;
(h) to add to, delete from, or revise the terms of Notes
of any series as permitted by Section 2.01, including, without
limitation, any terms relating to the issuance, exchange, registration
or transfer of Notes issued in whole or in part in the form of one of
more Global Notes and the payment of any principal thereof, or
interest (or premium), if any, thereon;
(i) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(j) to provide for the issuance of and establish the form
and terms and conditions of the Notes of any series, to establish the
form of any certifications required to be furnished pursuant to the
terms of this Indenture or any series of Notes, or to add to the
rights of the holders of any series of Notes.
The Trustee is hereby authorized to join with the Company in the
execution of any such Supplemental Indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
Supplemental Indenture which adversely affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise. No Supplemental Indenture
shall be effective as against the Trustee unless and until the Trustee has duly
executed and delivered the same.
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Any Supplemental Indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Notes at the time outstanding, notwithstanding any of
the provisions of Section 10.02.
SECTION 10.02. Supplemental Indentures With Consent of Noteholders.
With the consent (evidenced as provided in Section 8.01) of the holders of not
less than 66 2/3% in aggregate principal amount of the Notes of all series at
the time outstanding affected by a Supplemental Indenture (voting as one
class), the Company, when authorized by a Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or Supplemental
Indenture (which shall conform to the provisions of the Trust Indenture Act of
1939 as in force at the date of the execution thereof) for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any Supplemental Indenture or of modifying
in any manner the rights of the holders of the Notes of each such series;
provided, however, that no such Supplemental Indenture shall (i) extend the
fixed maturity of any Notes, or reduce the principal amount thereof (and
premium, if any) or reduce the rate or extend the time of payment of any
interest thereon, without the consent of the holder of each Note so affected,
or (ii) reduce the aforesaid percentage of Notes, the consent of the holders of
which is required for any such Supplemental Indenture, or the percentage
required for the consent of the holders pursuant to Section 6.13 to waive
defaults, without the consent of the holders of each Note so affected.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such Supplemental Indenture, and upon the
filing with the Trustee of evidence of the consent of noteholders as aforesaid,
the Trustee shall join with the Company in the execution of such Supplemental
Indenture unless such Supplemental Indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
Supplemental Indenture.
It shall not be necessary for the consent of the noteholders under
this Section to approve the particular form of any proposed Supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
Supplemental Indenture pursuant to the provisions of this Section, the Company
shall give notice thereof in the manner provided in Section 1.02, setting forth
in general terms the substance of such Supplemental Indenture to all
noteholders of each series so affected. Any failure of the Company so to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such Supplemental Indenture.
SECTION 10.03. Compliance With Trust Indenture Act; Effect of
Supplemental Indentures. Any Supplemental Indenture executed pursuant to the
provisions of this Article Ten shall comply with the Trust Indenture Act. Upon
the execution of any Supplemental Indenture pursuant to the provisions of this
Article Ten, this Indenture shall be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the
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holders of Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such Supplemental Indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02,
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel or a Company Order and Opinion of Counsel as conclusive
evidence that any such Supplemental Indenture complies with the provisions of
this Article Ten.
SECTION 10.04. Notation on Notes. Notes of any series authenticated
and delivered after the execution of any Supplemental Indenture pursuant to the
provisions of this Article Ten may bear a notation in form approved by the
Trustee as to any matter provided for in such Supplemental Indenture. New Notes
of any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any modification of this Indenture
contained in any such Supplemental Indenture may be prepared by the Company,
authenticated by the Trustee and delivered, without charge to the noteholders,
in exchange for the Notes of such series then Outstanding.
ARTICLE ELEVEN.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, Etc., on Certain Terms. The
Company covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person unless (i) either the Company shall be the continuing corporation, or
the successor corporation (if other than the Company) shall be a corporation
organized and existing under the laws of the United States of America or a
state thereof and such corporation shall expressly assume the due and punctual
payment of the principal of and interest on all the Notes, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company by
Supplemental Indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation and (ii) the Company or such successor
corporation, as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the performance of
any such covenant or condition.
SECTION 11.02. Successor Corporation to be Substituted for Company.
In case of any such consolidation, merger, sale or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the party of the first part. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the Company, any or all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to
the Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Notes which previously shall have been signed and delivered by the officers of
the Company to the Trustee for authentication, and any Notes which such
successor corporation thereafter shall cause
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to be signed and delivered to the Trustee for that purpose. All of the Notes,
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Notes, if any, theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Notes had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
SECTION 11.03. Opinion of Counsel to be Given Trustee. The Trustee,
subject to the provisions of Sections 7.01 and 7.02, shall receive an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article Eleven and that all conditions precedent herein provided for relating
to such transaction have been complied with.
ARTICLE TWELVE.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS.
SECTION 12.01. Discharge of Indenture. If at any time (a) the
Company shall have delivered to the Trustee for cancellation all Notes of any
series theretofore authenticated (other than any Notes of such series
appertaining thereto which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.08) or (b) all such
Notes of such series not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the
Trustee as trust funds the entire amount (other than moneys repaid by the
Trustee or any paying agent to the Company in accordance with Section 12.04)
sufficient to pay at maturity or upon redemption all Notes of such series not
theretofore delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest, if any, due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, then this Indenture shall
cease to be of further effect with respect to the Notes of such series, and the
Trustee, on demand of and at the cost and expense of the Company and subject to
Section 1.02, shall execute proper instruments acknowledging satisfaction of
and discharging this Indenture with respect to the Notes of such series. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee in connection with this
Indenture or the Notes of such series. Notwithstanding the satisfaction and
discharge of this Indenture with respect to the Notes of any series or of all
series, the obligations of the Company to the Trustee under Section 7.06 shall
survive.
The Company will deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel which together shall state that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
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SECTION 12.02. Deposited Moneys To Be Held In Trust By Trustee. All
moneys deposited with the Trustee pursuant to Section 12.01 shall be held in
trust and applied by it to the payment, either directly or through any Paying
Agent (including the Company if acting as its own Paying Agent), to the holders
of the particular Notes for the payment or redemption of which such moneys have
been deposited with the Trustee, of all sums due and to become due thereon for
principal (and premium, if any) and interest, if any.
SECTION 12.03. Paying Agent to Repay Moneys Held. In connection with
the satisfaction and discharge of this Indenture with respect to Notes of any
series, all moneys with respect to such Notes then held by any Paying Agent
under the provisions of this Indenture shall, upon demand of the Company, be
repaid to it or paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
SECTION 12.04. Return of Unclaimed Moneys. Any moneys deposited with
or paid to the Trustee or any Paying Agent for the payment of the principal of
or interest, if any, on any Note and not applied but remaining unclaimed for
two years after the date upon which such principal (and premium, if any) or
interest, if any, shall have become due and payable, shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Company by the Trustee or such Paying
Agent on demand, and the holder of such Note shall thereafter look only to the
Company for any payment which such holder may be entitled to collect and all
liability of the Trustee or any Paying Agent with respect to such moneys shall
thereupon cease.
SECTION 12.05. Satisfaction, Discharge and Defeasance of Notes of
Any Series. Unless, as specified pursuant to Section 2.01, provision is made
that defeasance of the Notes of a series under this section shall not apply to
the Notes of such series, this Section 12.05 shall be applicable to the
Outstanding Notes of all series upon compliance with the conditions set forth
below.
At the Company's option, either (a) the Company shall be deemed to
have paid and discharged the entire indebtedness on all the outstanding Notes
of any such series and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness or (b) the Company shall cease to be under any obligation to
comply with any term, provision, condition or covenant specified as
contemplated by Section 2.01, when
(1) either
(A) with respect to all outstanding Notes of such series,
(i) the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount (in such
currency in which such outstanding Notes are then specified as payable
at stated maturity) sufficient to pay and discharge the entire
indebtedness of all outstanding Notes of such series for principal
(and premium, if any) and interest, if any, to the stated maturity or
any Redemption Date as contemplated by the last paragraph of this
Section 12.05, as the case may be; or (ii) the Company has deposited
or caused to be deposited with the Trustee as obligations in trust for
the purpose such amount of direct
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noncallable obligations of, or noncallable obligations the payment of
principal of and interest on which is fully guaranteed by, the United
States of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States of America
is pledged, maturing as to principal and interest in such amounts and
at such times as will, together with the income to accrue thereon (but
without reinvesting any proceeds thereof), be sufficient to pay and
discharge the entire indebtedness on all outstanding Notes of such
series for principal (and premium, if any), interest, if any, to the
stated maturity or any Redemption Date as contemplated by the last
paragraph of this Section 12.05, as the case may be; or
(B) the Company has properly fulfilled such other terms
and conditions to the satisfaction and discharge as is specified, as
contemplated by Section 2.01, as applicable to the Notes of such
series, and
(2) The Company has paid or caused to be paid all other sums
payable with respect to the outstanding Notes of such series, and
(3) The Company has 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 execution 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 of
Counsel shall confirm that, the holders of the outstanding Notes of such series
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amounts and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred, and
(4) The Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of the
entire indebtedness on all outstanding Notes of any such series have been
complied with.
Any deposits with the Trustee referred to in Section 12.05(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any outstanding
Notes of such series are to be redeemed prior to their stated maturity, whether
pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement or otherwise, the applicable escrow trust
agreement shall provide therefore and the Company shall make such arrangements
as are satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company.
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ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
SECTION 13.01. Indenture and Notes Solely Corporate Obligations. No
recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Note, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, or against any past, present or future
stockholder, officer or director, as such, of the Company or of any successor
corporation, either directly or through the Company 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 of the Notes by the holders thereof and as part of the consideration
for the issue of the Notes.
ARTICLE FOURTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 14.01. Benefits of Indenture Restricted to Parties and
Holders. Nothing in this Indenture or in the Notes, expressed or implied, shall
give or be construed to give to any person, other than the parties hereto and
their successors and the holders of the Notes, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and of the holders of the Notes.
SECTION 14.02. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or in behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 14.03. Addresses for Notices, Etc. Subject to the provisions
of Section 4.01 with respect to demands for payment, any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes to or on the Company may be
given or served by being deposited postage prepaid first class mail in a post
office letter box addressed (until another address is filed by the Company with
the Trustee), as follows: Bank of America Corporation, Bank of America
Corporate Center, Corporate Treasury Division, NC1-007-23-01, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Fax: (000) 000-0000. Any notice,
direction, request or demand by any noteholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the corporate trust office of the Trustee as set forth in
Section 4.04.
SECTION 14.04. Evidence of Compliance With Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such documents is
specifically required by
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any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (1) a statement that the
person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 14.05. Legal Holidays. In any case where the date of
maturity of any interest or premium on or principal of any Note or the date
fixed for redemption of any Note shall not be a Business Day in the Place of
Payment, then payment of any interest or premium on or principal of such Notes,
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption, and no interest shall accrue for the period after
such date.
SECTION 14.06. Trust Indenture Act to Control. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture by operation of Sections 310 to
317, inclusive, of the Trust Indenture Act of 1939 (an "incorporated
provision"), such incorporated provision shall control.
SECTION 14.07. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 14.08. New York Contract. This Indenture and each Note shall
be deemed to be a contract made under the laws of the State of New York, and
for all purposes shall be governed by and construed in accordance with the laws
of said State.
SECTION 14.09. Severability of Provisions. Any prohibition,
invalidity or unenforceability of any provision of this Indenture in any
jurisdiction shall not invalidate or render unenforceable the remaining
provisions hereto in such jurisdiction and shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
ARTICLE FIFTEEN.
SUBORDINATION OF NOTES
SECTION 15.01. Notes Subordinate to Senior Indebtedness. The
Company, for itself, its successors and assigns, covenants and agrees, and each
holder of Notes of each series, by his acceptance thereof, likewise covenants
and agrees, that anything in this Indenture or the Notes of any series
notwithstanding, all Notes of every series issued hereunder shall be
subordinated and subject, to the extent and in the manner herein set forth, in
right of payment to
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the prior payment in full of all Senior Indebtedness. The provisions of this
Article are made for the benefit of all holders of Senior Indebtedness, and any
such holder may proceed to enforce such provisions.
SECTION 15.02. Payment Over of Proceeds Upon Dissolution, Etc. No
payment on account of principal of (and premium, if any) or interest on the
Notes shall be made, and no Notes shall be purchased, either directly or
indirectly, by the Company or any of its subsidiaries, if any default or Event
of Default with respect to any Senior Indebtedness, which permits or with the
giving of notice or passage of time or both would permit the holders thereof
(or a trustee on their behalf) to accelerate the maturity thereof, shall have
occurred and be continuing and the Company and the Trustee shall have received
written notice thereof from the holders of at least 10% in principal amount of
any kind or category of any Senior Indebtedness (or the representative or
representatives of such holders) or the Trustee shall have received written
notice thereof from the Company.
In the event that any Note is declared due and payable before the date
specified therein as the fixed date on which the principal thereof is due and
payable pursuant to Article Six, or upon any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all principal
of (and premium, if any) and interest due or to become due upon all Senior
Indebtedness shall first be paid in full before the noteholders, or the
Trustee, shall be entitled to retain any assets (other than shares of stock of
the Company as reorganized or readjusted or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated, at least to the same extent as the Notes, to
the payment of all Senior Indebtedness which may at the time be outstanding,
provided that the rights of the holders of the Senior Indebtedness are not
altered by such reorganization or readjustment) so paid or distributed in
respect of the Notes (for principal or interest); and upon such dissolution or
winding up or liquidation or reorganization any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities (other than shares of stock of the Company as reorganized or
readjusted or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated, at least to the same extent as the Notes, to the payment of all
Senior Indebtedness which may at the time be outstanding, provided that the
rights of the holders of the Senior Indebtedness are not altered by such
reorganization or readjustment), to which the noteholders or the Trustee would
be entitled, except for the provisions of this Section, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, or by the noteholders or
the Trustee if received by them or it, directly to the holders of Senior
Indebtedness (pro rata to each such holder on the basis of the respective
amounts of Senior Indebtedness held by such holder) or their representatives,
to the extent necessary to pay all Senior Indebtedness in full, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness, before any payment or distribution is made to the
noteholders or to the Trustee.
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No holders of Senior Indebtedness shall be prejudiced in their right
to enforce subordination of the Notes by any act or failure to act on the part
of the Company.
Subject to the payment in full of all Senior Indebtedness, the holders
of the Notes shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which, by its express terms, ranks on a parity with
the Notes and is entitled to like rights of subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or distributions of assets
of the Company applicable to the Senior Indebtedness until the Notes shall be
paid in full. For purposes of such subrogation, no payments or distributions on
the Senior Indebtedness pursuant to this Section shall, as between the Company,
its creditors other than the holders of Senior Indebtedness, and the holders of
the Notes, be deemed to be a payment by the Company to or on account of the
Senior Indebtedness, and no payments or distributions to the Trustee or the
holders of the Notes of assets by virtue of the subrogation herein provided for
shall, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Notes, be deemed to be a payment to or on
account of the Notes. The provisions of this Article are and are intended
solely for the purpose of defining the relative rights of the holders of the
Notes, on the one hand, and the holders of Senior Indebtedness, on the other
hand, and nothing contained in this Article elsewhere in this Indenture or in
the Notes is intended to or shall impair the obligation of the Company, which
is unconditional and absolute, to pay the principal of (and premium, if any)
and interest on the Notes as and when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the holders of
the Notes and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if
any, under this Article, of the holders of Senior Indebtedness in respect of
cash, property, or securities of the Company otherwise payable or delivered to
the Trustee or such noteholder upon the exercise of any such remedy.
Upon any payment or distribution pursuant to this Section, the Trustee
and the noteholders shall be entitled to rely upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature referred
to in this Section are pending, and the Trustee, subject to the provisions of
Section 7.01, and the noteholders shall be entitled to rely upon a certificate
of the liquidating trustee or agent or other person making such payment or
distribution delivered to the Trustee or to the noteholders for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Section. In the event that the Trustee determines, in good faith, that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Section, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such person under this Section, and if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
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Nothing contained in this Article or elsewhere in this Indenture, or
in any of the Notes, shall prevent (a) the application by the Trustee or any
paying agent of any moneys deposited with it hereunder to the payment of or on
account of the principal of (and premium, if any) or any interest on Notes if,
at the time of such deposit (provided that the time of such deposit was not
more than 10 days prior to the time of such payment), such payment would not
have been prohibited by the foregoing provisions of this Section, or (b) any
payment by the Company or the Trustee to the noteholders of moneys in
connection with a redemption of Notes if (1) notice of such redemption has been
given to the holders of the Notes to be redeemed pursuant to Article Three
hereof prior to the receipt by the Trustee of the written notice referred to in
Section 15.04 and (2) such notice of redemption is given not earlier than 60
days before the date fixed for redemption.
SECTION 15.03. Trustee To Effectuate Subordination. The holder of
each Note by his acceptance thereof authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination as provided in this Article and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 15.04. Trustee Not Charged with Knowledge of Prohibition.
The Company shall provide prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by
the Trustee in respect of any series of the Notes; provide, however, that
failure to give such notice shall not affect the subordination of the Notes to
any Senior Indebtedness. Notwithstanding the provisions of this Article or any
other provision of this Indenture, but subject to the provisions of Section
7.01, neither the Trustee nor any paying agent shall be charged with knowledge
of the existence of any Senior Indebtedness, or of any default in the payment
of the principal of (or premium, if any) or interest on any Senior
Indebtedness, or of any facts which would prohibit the making of any payment of
moneys to or by the Trustee or any such paying agent, unless and until the
Trustee or such paying agent shall have received written notice thereof from
the Company or the holders of at least 10% in principal amount of any kind or
category of any Senior Indebtedness or the representative or representatives of
such holders (certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee or such paying agent to be such holders
or representatives); nor shall the Trustee or any such paying agent be charged
with knowledge of the curing or waiving of any such default or of the
elimination of the act or condition preventing any such payment unless and
until the Trustee or such paying agent shall have received an Officers'
Certificate to such effect, and prior to the receipt of any such writing the
Trustee shall be entitled to assume that no such facts exist and that no such
cure or waiver has occurred; provided, however, that if not less than three
business days prior to the date upon which by the terms hereof any such moneys
may become payable for any purpose (including, without limitation, the payment
of the principal of or interest on any Note), the Trustee or such paying agent
shall not have received with respect to such moneys the notice provided for in
this Section, then, anything herein contained to the contrary notwithstanding,
the Trustee or such paying agent shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were received
and shall not be affected by any notice to the contrary which may be received
by it on or after such date.
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SECTION 15.05. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness; and nothing in Section
7.13, or elsewhere in this Indenture, shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06.
SECTION 15.06. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
it shall mistakenly pay over or distribute to noteholders or the Company or any
other person moneys or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise. With respect to any holders
of Senior Indebtedness, the Trustee undertakes to perform or to observe only
such of its covenants or obligations as are specifically set forth in this
Article Fifteen and no implied covenants or obligations with respect to holders
of Senior Indebtedness shall be read into this Indenture against the Trustee.
SECTION 15.07. Article Applicable to Paying Agents. In case at any
time any paying agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context shall otherwise require) be
construed as extending to and including such paying agent within its meaning as
fully for all intents and purposes as if such paying agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Sections 15.04, 15.05 and 15.06 shall not apply to the Company if it acts as
paying agent.
The Trustee, by its execution of a counterpart of this Indenture,
acknowledges and accepts its appointment as Trustee.
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IN WITNESS WHEREOF, THE BANK OF NEW YORK and BANK OF AMERICA
CORPORATION have each caused this Indenture to be signed by a duly authorized
officer, as of the day and year first above written.
THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Title Assistant Vice President
-------------------------------
BANK OF AMERICA CORPORATION
By: /s/ Xxxx X. Xxxx
---------------------------------
Senior Vice President
Signature Page 1 of 1
