EXHIBIT 4(e)
USG CORPORATION
AND
__________________,
Trustee
Subordinated Debt Securities
INDENTURE
Dated as of ______________
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
SECTION 1.1 Certain Terms Defined
ARTICLE II SECURITIES
SECTION 2.1 Forms Generally
SECTION 2.2 Form of Trustee's Certificate of
Authentication
SECTION 2.3 Amount Unlimited; Issuable in Series
SECTION 2.4 Authentication and Delivery of
Securities
SECTION 2.5 Execution of Securities
SECTION 2.6 Certificate of Authentication
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest
SECTION 2.8 Registration, Transfer and Exchange
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities
SECTION 2.10 Cancellation of Securities; Destruction
Thereof
SECTION 2.11 Temporary Securities
ARTICLE III COVENANTS OF THE CORPORATION
SECTION 3.1 Payment of Principal and Interest
SECTION 3.2 Offices for Payment, etc.
SECTION 3.3 Paying Agents
SECTION 3.4 Written Statement to Trustee
SECTION 3.5 Luxembourg Publications
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THECORPORATION
AND THE TRUSTEE
SECTION 4.1 Corporation to Furnish Trustee
Information as to Names and Addresses of
Securityholders
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists
SECTION 4.3 Reports by the Corporation
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERSON EVENT OF
DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration
of Maturity; Waiver of Default
SECTION 5.2 Collection of Indebtedness By Trustee;
Trustee May Prove Debt
SECTION 5.3 Application of Proceeds
SECTION 5.4 Restoration of Rights on Abandonment of
Proceedings
SECTION 5.5 Limitations on Suits by Securityholders
SECTION 5.6 Unconditional Right of Securityholders
to Institute Certain Suits
SECTION 5.7 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default
SECTION 5.8 Control by Securityholders
SECTION 5.9 Waiver of Past Defaults
SECTION 5.10 Right of Court to Require Filing of
Undertaking to Pay Costs
SECTION 5.11 Suits for Enforcement
ARTICLE VI CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee
SECTION 6.2 Rights of Trustee
SECTION 6.3 Individual Rights of Trustee
SECTION 6.4 Trustee's Disclaimer
SECTION 6.5 Notice of Defaults
SECTION 6.6 Reports by Trustee to Holders
SECTION 6.7 Compensation and Indemnity
SECTION 6.8 Replacement of Trustee
SECTION 6.9 Successor Trustee by Merger
SECTION 6.10 Eligibility; Disqualification
SECTION 6.11 Preferential Collection of Claims
Against Corporation
ARTICLE VII CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders
SECTION 7.2 Proof of Execution of Instruments
SECTION 7.3 Holders to Be Treated as Owners
SECTION 7.4 Securities Owned by Corporation Deemed
Not Outstanding
SECTION 7.5 Right of Revocation of Action Taken
ARTICLE VIII SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders
SECTION 8.3 Effect of Supplemental Indenture
SECTION 8.4 Documents to Be Given to Trustee
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures
SECTION 8.6 Subordination Unimpaired
ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Corporation May Consolidate, etc., on
Certain Terms
SECTION 9.2 Successor Corporation Substituted
SECTION 9.3 Opinion of Counsel to Trustee
ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE;UNCLAIMED
MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture
SECTION 10.2 Application by Trustee of Funds
Deposited for-Payment of Securities
SECTION 10.3 Repayment of Moneys Held by Paying Agent
SECTION 10.4 Return of Unclaimed Moneys Held by
Trustee and Paying Agent
SECTION 10.5 Reinstatement of Corporation's
Obligations
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Corporation Exempt from
Individual Liability
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders
SECTION 11.3 Successors and Assigns of Corporation
Bound by Indenture
SECTION 11.7 Conflict of Any Provision of Indenture
with Trust Indenture Act
SECTION 11.8 New York Law to Govern
SECTION 11.9 Counterparts
SECTION 11.10 Effect of Headings; Gender
SECTION 11.11 Securities in a Foreign Currency or in
ECU
ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article
SECTION 12.2 Election to Redeem; Notice of
Redemption; Partial Redemptions
SECTION 12.3 Payment of Securities Called for
Redemption
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption
SECTION 12.5 Mandatory and Optional Sinking Funds
SECTION 12.6 Repayment at the Option of the Holders
ARTICLE XIII SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior
Indebtedness
SECTION 13.2 Reliance on Certificate of Liquidating
Agent; Further Evidence as to Ownership
of Senior Indebtedness
SECTION 13.3 Payment Permitted If No Default
SECTION 13.4 Trustee Not Charged with Knowledge of
Prohibition
SECTION 13.5 Trustee to Effectuate Subordination
SECTION 13.6 Rights of Trustee as Holder of Senior
Indebtedness
SECTION 13.7 Article Applicable to Paying Agents
SECTION 13.8 Subordination Rights Not Impaired by
Acts or Omissions of the Corporation or
Holders of Senior Indebtedness
SECTION 13.9 Trustee Not Fiduciary for Holders of
Senior Indebtedness
USG CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of _________
Trust Indenture
Act Section Indenture Section
Sec. 310 (a) (1) 6.10
(a) (2) 6.10
(a) (3) Not Applicable
(a) (4) Not Applicable
(a) (5) 6.10
(b) 6.8, 6.10
Sec. 311 (a) 6.11
(b) 6.11
Sec. 312 (a) 4.1 and 4.2
(b) 4.2
(c) 4.2
Sec. 313 (a) (1)-(5) & (7)-(8) 6.6
(a) (6) Not Applicable
(b) (1) Not Applicable
(b) (2) 6.6
(c) 6.6
(d) 6.6
Sec. 314 (a) (1)-(3) 4.3
(a) (4) 3.4
(b) Not Applicable
(c) (1) 11.5
(c) (2) 11.5
(c) (3) Not Applicable
(d) Not Applicable
(e) 11.5
(f) Not Applicable
Sec. 315 (a) 6.1
(b) 6.5
(c) 6.1
(d) 6.1
(d) (1) 6.1
(d) (2) 6.1
(d) (3) 6.1
(e) 5.10
Sec. 316 (a) 7.4
(a) (1) (A) 5.8
(a) (1) (B) 5.1, 5.9
(a) (2) Not Applicable
(b) 5.6
(c) 7.1
Sec. 317 (a) (1) 5.2
(a) (2) 5.2
(b) 3.3
Sec. 318 (a) 11.7
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
THIS INDENTURE, dated as of _________________ between
USG CORPORATION, a Delaware corporation (the "Corporation"), and
________________________, a _________________ organized under the
laws of ________________ (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Corporation has duly authorized the
issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (the "Securities") to be issued
in one or more Series; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement according to its terms have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchases of
the Securities by the Holders thereof, it is mutually agreed for
the equal and proportionate benefit of the respective Holders
from time to time of the Securities or of a Series thereof as
follows:
ARTICLE I.
DEFINITIONS
SECTION A. Certain Terms Defined. The following
terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture
Act of 1939, as amended, or the definitions of which in the
Securities Act of 1933, as amended, are referred to in the Trust
Indenture Act of 1939, as amended, including terms defined
therein by reference to the Securities Act of 1933, as amended
(except as herein otherwise expressly provided or unless the
context otherwise clearly requires), shall have the meanings
assigned to such terms in the Trust Indenture Act of 1939, as
amended, and in the Securities Act of 1933, as amended, as in
force at the date of this Indenture. All accounting terms used
herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein,"
hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole, as supplemented and amended from
time to time, and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular.
"Authorized Newspaper" means a newspaper (which, in the
case of The City of New York, will, if practicable, be The Wall
Street Journal (Eastern Edition), in the case of the United
Kingdom, will, if practicable, be the Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be
the Luxembourger Wort), published in an official language of the
country of publication customarily published at least once a day
for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or in
Luxembourg, as applicable. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Bankruptcy Code" means the United States Bankruptcy
Code, 11 United States Code Sec. 101 et seq., or any successor
statute thereto.
"Board of Directors" means either the Board of
Directors of the Corporation or any duly authorized committee of
or created by that Board.
"Business Day" means, except as may otherwise be
provided in the form of Securities of any particular Series, with
respect to any Place of Payment or place of publication, any day,
other than a Saturday or Sunday, or a day on which banking
institutions are authorized or required by law or regulation to
close in that Place of Payment or place of publication.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, as amended, or if at any time
after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing
such duties on such date.
"Conversion Agent" shall have the meaning set forth in
Section 3.2.
"Corporate Trust Office" means 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 execution of this Indenture is located at
________________________.
"Corporation" means USG Corporation, a Delaware
corporation, until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter "Corporation" shall mean such successor corporation.
"Corporation Notice" means the confirmation of the
Corporation signed by an officer, and transmitted to the Trustee
of the terms of the issuance of any Securities.
"Coupon" means any interest coupon appertaining to a
Security.
"defaulted interest" has the meaning specified in
Section 2.7.
"defeasance" has the meaning specified in Section
10.1(B)(ii).
"Depositary" means, with respect to the Securities of
any Series issuable or issued in the form of one or more
Registered Global Securities, the Person designated as Depositary
by the Corporation pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder,
and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such
Series shall mean the Depositary with respect to the Registered
Global Securities of that Series.
"Depositary Security" means, with respect to any Series
of Securities, a Security executed by the Corporation and
authenticated and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with
this Indenture and pursuant to a resolution of the Board of
Directors as contemplated by Section 2.3, which (i) shall be
registered as to principal and interest in the name of the
Depositary or its nominee and (ii) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount
of, all of the Outstanding Securities of such Series.
"Dollar" means the coin or currency of the United
States of America which as of the time of payment is legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" has the meaning specified in
Section 5.1.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Government Obligations" means, unless otherwise
specified pursuant to Section 2.3, securities which are
(i) direct obligations of the government which issued the
currency in which the Securities of such Series are denominated
for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by, or
acting as an agency or instrumentality of, the United States
government, the payment of which obligations is unconditionally
guaranteed by such government, and which, in either case, are
full faith and credit obligations of such government, and which
are not callable or redeemable at the option of the issuer
thereof prior to their stated maturity.
"Holder", "Holder of Securities", "Registered Holder",
"Securityholder" or other similar terms mean (a) in the case of
any Registered Security, the Person in whose name such Security
is registered in the Security Register, and (b) in the case of
any Unregistered Security, the bearer of such Security, or any
coupon appertaining thereto, as the case may be.
"Indenture" means this instrument as originally
executed and delivered or as it may from time to time be amended
or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular
Series of Securities established as contemplated by Section 2.3.
"Journal" has the meaning specified in Section 11.11.
"Market Exchange Rate" has the meaning specified in
Section 11.11.
"Maturity" when used with respect to any Security means
the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed on
behalf of the Corporation by the chairman of the Board of
Directors or the vice chairman or the president or any vice
president and by the treasurer, the controller, any assistant
treasurer, the secretary or any assistant secretary of the
Corporation and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal
counsel, who may be an employee of or counsel to the Corporation,
and who shall be reasonably acceptable to the Trustee. Each
Opinion of Counsel shall include the statements provided for in
Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the date of such Security or
(b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of
transfer, exchange or substitution.
"Original Issue Discount Security" means any Security
that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.1.
"Outstanding" when used with reference to Securities,
subject to the provisions of Section 7.4, means, as of any
particular time, all Securities authenticated and delivered under
this Indenture, except
1. Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
2. Securities, or portions thereof, for the payment
or redemption of which moneys in the necessary amount and in the
required currency shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Corporation) or
shall have been set aside, segregated and held in trust by the
Corporation for the Holders of such Securities (if the
Corporation shall act as its own Paying Agent), provided that if
such Securities, or portions thereof, are to be redeemed prior to
the Maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice;
3. Securities in substitution for which other
Securities shall have been authenticated and delivered, or which
shall have been paid, pursuant to the terms of Section 2.9
(except with respect to any such Security as to which proof
satisfactory to the Trustee and the Corporation is presented that
such Security is held by a Person in whose hands such Security is
a legal, valid and binding obligation of the Corporation); and
4. Securities as to which defeasance has been
effected pursuant to Section 10.1(B).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all Series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original
Issue Discount Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.1.
"Paying Agent" means any Person (which may include the
Corporation) authorized by the Corporation to pay the principal
of or interest, if any, on any Security on behalf of the
Corporation.
"Persons" or "Person" means any individual,
corporation, partnership, joint venture, limited liability
company, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the
Securities of any Series, means the place or places where the
principal of and interest, if any, on the Securities of that
Series are payable as specified pursuant to Section 3.2.
"principal" whenever used with reference to the
Securities or any Security or any portion thereof, shall be
deemed to include "and premium, if any."
"record date" has the meaning specified in Section 2.7.
"Registered Global Security" means a Security
evidencing all or a part of a Series of Registered Securities,
issued to the Depositary for such Series in accordance with
Section 2.4, and bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security which is
registered in the Security Register.
"Responsible Officer" when used with respect to the
Trustee means any officer within the corporate trust department
(or any successor department) of the Trustee including any vice
president, assistant vice president, assistant secretary, senior
trust officer, trust officer or any other officer or assistant
officer of the Trustee customarily performing functions similar
to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is
referred at the Corporate Trust Office because of his or her
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture and more particularly means
any Securities authenticated and delivered under this Indenture.
"Security Register" has the meaning specified in
Section 2.8.
"Senior Indebtedness" means (a) indebtedness or
obligations of, or guaranteed or assumed by, the Corporation for
borrowed money which is evidenced by bonds, debentures, notes or
other similar instruments unless, by the terms of such
indebtedness it is provided that such indebtedness is not senior
in right of payment to the Securities of any Series, and (b) any
amendments, renewals, extensions, modifications and refinancings
of any such indebtedness or obligations; provided that Senior
Indebtedness shall not include the Securities of any Series.
"Series" or "Series of Securities" means all Securities
of a similar tenor authorized by a particular resolution of the
Board of Directors.
"Stated Maturity" when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date on which the principal of such Security
or such installment of principal or interest is due and payable
in accordance with the terms thereof.
"Trust Indenture Act" or "TIA" (except as otherwise
provided in Sections 8.1 and 8.2) means the Trust Indenture Act
of 1939, as amended, as in force at the date as of which this
Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in
the first paragraph hereof until a successor Trustee shall have
become such pursuant to the provisions hereof, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any Series
shall mean the Trustee with respect to Securities of that Series.
"United States of America" means the United States of
America (including the states and the District of Columbia), its
territories, possessions, the Commonwealth of Puerto Rico and
other areas subject to its jurisdiction.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Person" means a citizen or resident of the United
States of America, a corporation, partnership or other entity
created or organized in or under the laws of the United States of
America or any political subdivision thereof or an estate or
trust the income of which is subject to United States of America
federal income taxation regardless of whether such income is from
sources within or without the United States of America or whether
or not such income is effectively connected with the conduct of a
trade or business within the United States of America.
"vice president" when used with respect to the
Corporation or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before or
after the title of "vice president."
ARTICLE II.
SECURITIES
SECTION A. Forms Generally. The Securities of each
Series and the Coupons, if any, to be attached thereto shall be
substantially in such form (including temporary or definitive
global form) as shall be established by or pursuant to a
resolution of the Board of Directors or in one or more indentures
supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (the provisions of which
shall be appropriate to reflect the terms of the Series of
Securities represented thereby) and may have imprinted or
otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or
to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of the Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if
any.
SECTION B. Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on
all Securities shall be in substantially the following form:
This is one of the Securities of the Series designated
herein and referred to in the within-mentioned Indenture.
,
as Trustee
By:
Authorized Signatory
or
,
as Trustee
By: ,
as Authentication Agent
By:
Authorized Signatory
SECTION C. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more Series and
the Securities of each Series shall rank equally. There shall be
established in or pursuant to one or more resolutions of the
Board of Directors and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any Series.
1. the title of the Securities of the Series (which
title shall distinguish the Securities of the Series from all
other Securities issued by the Corporation);
2. any limit upon the aggregate principal amount of
the Securities of the Series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the Series
pursuant to Sections 2.8, 2.9, 2.11, 8.5 or 12.3);
3. if other than 100% of their principal amount, the
percentage of their principal amount at which the Securities of
the Series will be offered for sale to the public;
4. if other than Dollars, the coin or currency in
which the Securities of that Series are denominated (including,
but not limited to, any Foreign Currency or ECU);
5. the date or dates on which the principal of the
Securities of the Series is payable or the method of
determination thereof;
6. the rate or rates (which may be fixed or
variable), or the method or methods of determination thereof, at
which the Securities of the Series shall bear interest, if any,
the date or dates from which such interest shall accrue, the
interest payment dates on which such interest shall be payable
and (in the case of Registered Securities) the record dates for
the determination of Holders to whom interest is payable;
7. the place or places where the principal of and
interest, if any, on Securities of the Series shall be payable
(if other than as provided in Section 3.2);
8. the price or prices at which, the period or
periods within which and the terms and conditions upon which
Securities of the Series may be redeemed, in whole or in part, at
the option of the Corporation;
9. if other than the principal amount thereof, the
portion of the principal amount of Securities of the Series which
shall be payable upon declaration of acceleration of the Maturity
pursuant to Section 5.1 or provable in bankruptcy pursuant to
Section 5.2;
10. the obligation, if any, of the Corporation to
redeem, purchase or repay Securities of the Series whether
pursuant to any sinking fund or analogous provisions or pursuant
to other provisions set forth therein or at the option of a
Holder thereof and the price or prices at which and the period or
periods within which and the terms and conditions upon which
Securities of the Series shall be redeemed, purchased or repaid,
in whole or in part;
11. if other than denominations of $1,000, and any
integral multiple thereof, in the case of Registered Securities,
or $1,000 and $5,000 in the case of Unregistered Securities, the
denominations in which Securities of the Series shall be
issuable;
12. the form of the Securities, including such legends
as required by law or as the Corporation deems necessary or
appropriate and the form of any temporary global security which
may be issued;
13. if other than the coin or currency in which the
Securities of that Series are denominated, the coin or currency
in which payment of the principal of or interest on the
Securities of such Series shall be payable (including, but not
limited to, any Foreign Currency or ECU);
14. if the principal of or interest on the Securities
of such Series are to be payable, at the election of the
Corporation or a Holder thereof, in a coin or currency other than
that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which,
such election may be made;
15. if the amount of payments of principal of and
interest on the Securities of the Series may be determined with
reference to an index, formula or method, the manner in which
such amounts shall be determined;
16. whether the Securities of the Series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions applicable to the
offer, sale or delivery of Unregistered Securities or the payment
of interest thereon and, if other than as provided in Section
2.8, the terms upon which Unregistered Securities of any Series
may be exchanged for Registered Securities of such Series and
vice versa;
17. whether, under what circumstances and in what
amounts the Corporation will pay additional amounts on the
Securities of the Series held by a Person who is not a U.S.
Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Corporation will
have the option to redeem such Securities rather than pay such
additional amounts;
18. if the Securities of such Series are to be
issuable in definitive form (whether upon original issue or upon
exchange of a temporary Security of such Series) only upon
receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
19. if other than the Trustee, any trustees,
depositories, authenticating or Paying Agents, transfer agents or
registrars or any other agents with respect to the Securities of
such Series;
20. if the Securities of such Series do not bear
interest, the applicable dates for purposes of Section 4.1
hereof;
21. whether the Securities of such Series are to be
issuable in whole or in part in the form of one or more
Depositary Securities, and, in such case, the Depositary for such
Securities;
22. the application, if any, of Section 10.1(B)(ii) to
the Securities of the Series or any alternative or other
provisions for the defeasance (including any covenant or event of
default defeasance) of the Securities of the Series;
23. any other events of default or covenants with
respect to the Securities of such Series;
24. if applicable, any provisions, including terms and
conditions, with respect to the conversion of the Securities of
such Series; and
25. any other terms or conditions upon which the
Securities of the Series are to be issued (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one Series and Coupons, if any,
appertaining thereto shall be substantially identical except as
to denomination and except in the case of Registered Securities
as may otherwise be provided in or pursuant to such resolution of
the Board of Directors or in any such indenture supplemental
hereto. All Securities of any one Series need not be issued at
the same time, and unless otherwise provided, a Series may be
reopened for issuances of additional Securities of such Series.
SECTION D. Authentication and Delivery of
Securities. At any time and from time to time after the
execution and delivery of this Indenture, the Corporation may
deliver Securities of any Series, having attached thereto
appropriate Coupons, if any, executed by the Corporation to the
Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery such Securities to
or upon the written order of the Corporation, signed by both (a)
the chairman of its Board of Directors, or any vice chairman of
its Board of Directors, or its president or any vice president
and (b) its treasurer or any assistant treasurer, secretary or
any assistant secretary without any further action by the
Corporation. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive and
(subject to Section 6.1) shall be fully protected in relying
upon:
1. a copy of any resolution or resolutions of the
Board of Directors relating to such Series, in each case
certified by the secretary or an assistant secretary of the
Corporation;
2. a supplemental indenture, if any;
3. an Officers' Certificate setting forth the form
and terms of the Securities of such Series and Coupons, if any,
as required pursuant to Sections 2.1 and 2.3, respectively, and
prepared in accordance with Section 11.5;
4. an Opinion of Counsel, prepared in accordance with
Section 11.5, which shall state that:
a. the form or forms and terms of such
Securities and Coupons, if any, have been established
by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted
by Sections 2.1 and 2.3 in conformity with the
provisions of this Indenture and in conformity with
such resolution or supplemental indenture, as the case
may be, and
b. such Securities, and Coupons, if any, have
been duly authorized, and, when authenticated and
delivered by the Trustee and issued by the Corporation
in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and
binding obligations of the Corporation enforceable in
accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting
the enforcement of creditors. Rights generally and by
general equitable principles, regardless of whether
such enforceability is considered in a proceeding in
equity or at law.
Notwithstanding the provisions of Section 2.3 and of
the preceding paragraph, if all Securities of a Series are not to
be originally issued at one time, it shall not be necessary to
deliver the resolution of the Board of Directors and/or Officers'
Certificate otherwise required pursuant to Section 2.3 or the
Officers' Certificate and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such Series if such documents
are delivered at or prior to the time of authentication upon
original issuance of the first Security of such Series to be
issued. After the original issuance of the first Security of
such Series to be issued, any separate request by the Corporation
that the Trustee authenticate Securities of such Series for
original issuance will be deemed to be a certification by the
Corporation that it is in compliance with all conditions
precedent provided for in this Indenture relating to the
authentication and delivery of such Securities.
The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the
Trustee is advised by counsel in good faith that the issuance of
such Securities would expose the Trustee to personal liability or
is unlawful.
If the Corporation shall establish pursuant to Section
2.3 that the Securities of a Series are to be issued in the form
of one or more Registered Global Securities, then the Corporation
shall execute and the Trustee shall, in accordance with this
Section, authenticate and deliver one or more Registered Global
Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the
Securities of such Series issued and not yet cancelled, (ii)
shall be registered in the name of the Depositary for such
Registered Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such
Depositary or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Securities in definitive registered form, this Security may not
be transferred except as a whole by the Depositary to the nominee
of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3
must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute
or regulation.
SECTION E. Execution of Securities. The Securities
and, if applicable, each Coupon appertaining thereto shall be
signed on behalf of the Corporation by both (a) the chairman of
its Board of Directors or its president or any vice president and
(b) its treasurer or any assistant treasurer or its secretary or
any assistant secretary, under its corporate seal (except in the
case of Coupons) which may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of such
officers. The seal of the Corporation may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or
any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated
and delivered by the Trustee.
In case any officer of the Corporation who shall have
signed any of the Securities or Coupons, if any, shall cease to
be such officer before the Security or Coupon so signed (or the
Security to which the Coupon so signed appertains) shall be
authenticated and delivered by the Trustee or disposed of by the
Corporation, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the Person
who signed such Security or Coupon had not ceased to be such
officer of the Corporation; and any Security or Coupon may be
signed on behalf of the Corporation by such Persons as, at the
actual date of the execution of such Security or Coupon, shall be
the proper officers of the Corporation, although at the date of
the execution and delivery of this Indenture any such Person was
not such an officer.
SECTION F. Certificate of Authentication. Only
such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited and
executed by the Trustee by the manual signature of one of its
authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. No Coupon
shall be entitled to the benefits of this Indenture or shall be
valid and obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of
such certificate by the Trustee upon any Security executed by the
Corporation shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
Notwithstanding the foregoing, if any Security shall
have been duly authenticated and delivered hereunder but never
issued and sold by the Corporation, the Corporation shall deliver
such Security to the Trustee for cancellation as provided in
Section 2.10 together with a written statement (which need not
comply with Section 11.5 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been
issued and sold by the Corporation, for all purposes of the
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of the Indenture.
SECTION G. Denomination and Date of Securities;
Payments of Interest. The Securities of each Series shall be
issuable as Registered Securities or Unregistered Securities in
denominations as shall be specified as contemplated by Section
2.3. In the absence of any such specification with respect to
the Securities of any Series, Registered Securities shall be
issuable in denominations of $1,000 and any integral multiple
thereof, and Unregistered Securities shall be issuable in
denominations of $1,000 and $5,000. The Securities of each
Series shall be numbered, lettered, or otherwise distinguished in
such manner or in accordance with such plan as the officers of
the Corporation executing the same may determine with the
approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in the resolution or resolutions of the Board of
Directors of the Corporation referred to in Section 2.3. The
Securities of each Series shall bear interest, if any, from the
date, and such interest shall be payable on the dates,
established as contemplated by Section 2.3.
Unless otherwise provided as contemplated by Section
2.3, interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any interest payment
date shall be paid to the Person in whose name that Registered
Security (or one or more predecessor Registered Securities) is
registered at the close of business on the regular record date
for the payment of such interest.
The term "record date" as used with respect to any
interest payment date (except for a date for payment of defaulted
interest) shall mean the date specified as such in the terms of
the Securities of any particular Series, or, if no such date is
so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record
date is a Business Day.
Any interest on any Security of any Series which is
payable, but is not punctually paid or duly provided for, on any
interest payment date (called "defaulted interest" for purposes
of this Section) shall forthwith cease to be payable to the
Registered Holder on the relevant record date by virtue of his
having been such Holder; and such defaulted interest may be paid
by the Corporation, at its election in each case, as provided in
clause (1) or clause (2) below:
(1) The Corporation may elect to make payment of any
defaulted interest to the Persons in whose names any such
Securities (or their respective predecessor Securities) are
registered at the close of business on a special record date for
the payment of such defaulted interest, which shall be fixed in
the following manner. The Corporation shall notify the Trustee
in writing of the amount of defaulted interest proposed to be
paid on each Security of such Series and the date of the proposed
payment, and at the same time the Corporation shall deposit with
the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such defaulted interest or
shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such defaulted interest as in this clause provided.
Thereupon the Trustee shall fix a special record date for the
payment of such defaulted interest in respect of Securities of
such Series which shall be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the
Corporation of such special record date and, in the name and at
the expense of the Corporation, shall cause notice of the
proposed payment of such defaulted interest and the special
record date thereof to be mailed, first class postage prepaid, to
each Registered Holder at his address as it appears in the
Security Register, not less than 10 days prior to such special
record date. Notice of the proposed payment of such defaulted
interest and the special record date therefor having been mailed
as aforesaid, such defaulted interest in respect of Securities of
such Series shall be paid to the Person in whose names such
Securities (or their respective predecessor Securities) are
registered on such special record date and such defaulted
interest shall no longer be payable pursuant to the following
clause (2).
(2) The Corporation may make payment of any defaulted
interest on the Securities of any Series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which the Securities of that Series may be listed,
and upon such notice as may be required by such exchange, if,
after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon transfer of or
in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION H. Registration, Transfer and Exchange. The
Corporation will cause to be kept at each office or agency to be
maintained for the purpose as provided in Section 3.2 for each
Series of Securities a register or registers (herein sometimes
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Corporation will
provide for the registration and the registration of the transfer
of, the Registered Securities, The Trustee is hereby appointed
Security registrar for purposes of registering, and registering
transfers of, the Securities.
Upon surrender for registration of transfer of any
Registered Security of any Series at any such office or agency to
be maintained for the purpose as provided in Section 3.2, the
Corporation shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or
transferees a new Registered Security or Registered Securities of
the same Series and of a like tenor and containing the same terms
(other than the principal amount thereof, if more than one
Registered Security is executed, authenticated and delivered with
respect to any Registered Security so presented, in which case
the aggregate principal amount of the executed, authenticated and
delivered Registered Securities shall equal the principal amount
of the Security presented in respect thereof) and conditions.
Unregistered Securities (except for any temporary
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary Unregistered Global Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered
Securities of any Series (other than a Registered Global
Security, except as set forth below) may be exchanged for a
Registered Security or Registered Securities of such Series
having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be
exchanged at the agency of the Corporation that shall be
maintained for such purpose in accordance with Section 3.2 and
upon payment, if the Corporation shall so require, of the charges
hereinafter provided. If the Securities of any Series are issued
in both registered and unregistered form, except as otherwise
specified pursuant to Section 2.3, at the option of the Holder
thereof, Unregistered Securities of any Series may be exchanged
for Registered Securities of such Series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Corporation that shall be maintained for such
purpose in accordance with Section 3.2, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Corporation shall so require, of the
charges hereinafter provided. At the option of the Holder
thereof, if Unregistered Securities of any Series, maturity date,
interest rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant
to Section 2.3, such Unregistered Securities may be exchanged for
Unregistered Securities of such Series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the
agency of the Corporation that shall be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant
to Section 2.3, with, in the case of Unregistered Securities that
have Coupons attached, all unmatured Coupons and all matured
Coupons in default appertaining thereto, and upon payment, if the
Corporation shall so require, of the charges hereinafter
provided. Unless otherwise specified pursuant to Section 2.3,
Registered Securities of any Series may not be exchanged for
Unregistered Securities of such Series. Whenever any Securities
are so surrendered for exchange, the Corporation shall execute,
and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive. All
Securities and Coupons surrendered upon any exchange or transfer
provided for in this Indenture shall be promptly cancelled and
disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Corporation.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Corporation,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such transfer
or exchange.
Every Security presented or surrendered for
registration of transfer or exchange shall (if so required by the
Corporation or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the
Corporation and the Trustee duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made to the Holder for any
registration of transfer or exchange of Securities, but the
Corporation may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Securities, other
than exchanges pursuant to Sections 2.11, 8.5 or 12.3 not
involving any transfer.
The Corporation shall not be required (i) to issue,
register the transfer of or exchange any Security during a 15 day
period prior to the day of mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except,
in the case of any Security to be redeemed in part, the portion
thereof not redeemed.
Notwithstanding any other provision of this Section
2.8, unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Registered Global
Security representing all or a portion of the Securities of a
Series may not be transferred except as a whole by the Depositary
for such Series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such Series or a nominee of such
successor Depositary.
If at any time the Depositary for any Registered
Securities of a Series represented by one or more Registered
Global Securities notifies the Corporation that it is unwilling
or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the
Corporation shall appoint a successor Depositary with respect to
such Registered Securities. If a successor Depositary for such
Registered Securities is not appointed by the Corporation within
90 days after the Corporation receives such notice or becomes
aware of such ineligibility, the Corporation's election pursuant
to Section 2.3 that such Registered Securities be represented by
one or more Registered Global Securities shall no longer be
effective and the Corporation will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such Series, will
authenticate and deliver, Securities of such Series in definitive
registered form without Coupons, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such
Registered Securities in exchange for such Registered Global
Security or Securities.
The Corporation may at any time and in its sole
discretion determine that the Registered Securities of any Series
issued in the form of one or more Registered Global Securities
shall no longer be represented by a Registered Global Security or
Securities. In such event the Corporation will execute, and the
Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
Series, will authenticate and deliver, Securities of such Series
in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If an Event of Default occurs and is continuing with
respect to Registered Securities of any Series issued in the form
of one or more Registered Global Securities, upon written notice
from the Depositary, the Corporation will execute, and the
Trustee, upon receipt of an Officers' Certificate for the
authentication and delivery of definitive Securities of such
Series, will authenticate and deliver, Securities of such Series
in definitive registered forms without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities,
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If specified by the Corporation pursuant to Section 2.3
with respect to Securities represented by a Registered Global
Security, the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in whole or
in part for Securities of the same Series in definitive
registered form on such terms as are acceptable to the
Corporation and such Depositary. Thereupon, the Corporation
shall execute, and the Trustee shall authenticate and deliver,
without service charge to the Holder,
a. to the Person specified by such Depositary a
new Registered Security or Securities of the same
Series, of any authorized denominations as requested by
such Person, in an aggregate principal amount equal to
and in exchange for such Person's beneficial interest
in the Registered Global Security; and
b. to such Depositary a new Registered Global
Security in a denomination equal to the difference, if
any, between the principal amount of the surrendered
Registered Global Security and the aggregate principal
amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall
be cancelled by the Trustee or an agent of the Corporation or the
Trustee. Securities in definitive registered form without
Coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names
and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee or agent of the Corporation or the Trustee. The Trustee
or such agent shall deliver such Securities to or as directed by
the Persons in whose names such Securities are so registered.
Notwithstanding anything herein or in the terms of any
Series of Securities to the contrary, none of the Corporation,
the Trustee or any agent of the Corporation or the Trustee (any
of which, other than the Corporation, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security if
such exchange would result in adverse Federal income tax
consequences to the Corporation (such as, for example, the
inability of the Corporation to deduct from its income, as
computed for Federal income tax purposes, the interest payable on
the Unregistered Securities) under then applicable United States
Federal income tax laws.
SECTION I. Mutilated, Defaced, Destroyed, Lost and
Stolen Securities. In case any temporary or definitive Security
or any Coupon appertaining to any Security shall become mutilated
or defaced or be destroyed, lost or stolen, then, in the absence
of notice to the Corporation or the Trustee that the Security has
been acquired by a bona fide purchaser, the Corporation shall
execute, and upon the written request of any officer of the
Corporation, the Trustee shall authenticate and make available
for delivery a new Security of the same Series and of like tenor
and principal amount and with the same terms and conditions,
bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security or in lieu
of and substitution for the Security so destroyed, lost or
stolen, in each case together with Coupons corresponding to the
Coupons appertaining to the Securities so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for a
substitute Security or Coupon shall furnish to the Corporation
and to the Trustee and to any agent of the Corporation or the
Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in
every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security
and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security and related Coupons to
the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon,
the Corporation may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee or its agent) connected therewith. In
case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full or is being
surrendered for conversion in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Corporation may,
instead of issuing a substitute Security, pay or authorize the
payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security);
provided, however, that unless otherwise provided pursuant to
Section 2.3, the applicant for such payment shall furnish to the
Corporation and to the Trustee and any agent of the Corporation
or the Trustee such security or indemnity as any of them may
require to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to
the Corporation and the Trustee and any agent of the Corporation
or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substitute Security or Coupon of any Series
issued pursuant to the provisions of this Section by virtue of
the fact that any Security or Coupon is destroyed, lost or stolen
shall constitute an additional contractual obligation of the
Corporation, whether or not the destroyed, lost or stolen
Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to
all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities or
Coupons of such Series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by the
law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, destroyed, lost or
stolen Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION J. Cancellation of Securities; Destruction
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer, exchange or conversion, or
for credit against any payment in respect of a sinking or
analogous fund, shall, if surrendered to the Corporation or any
agent of the Corporation or the Trustee, be delivered to the
Trustee for cancellation or, if surrendered to the Trustee, shall
be cancelled by it; and no Securities or Coupons shall be issued
in lieu thereof, except as expressly permitted by any of the
provisions of this Indenture. The Corporation may at any time
deliver to the Trustee for cancellation any Securities or Coupons
previously authenticated hereunder which the Corporation has not
issued and sold and all Securities or Coupons so delivered shall
be promptly cancelled by the Trustee. The Trustee shall return
cancelled Securities and Coupons held by it or provide a
certificate of destruction to the Corporation. If the
Corporation shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities or Coupons unless
and until the same are delivered to the Trustee for cancellation.
SECTION K. Temporary Securities. Pending the
preparation of definitive Securities for any Series, the
Corporation may execute and the Trustee shall authenticate and
make available for delivery temporary Securities for such Series
(printed, lithographed, typewritten or otherwise reproduced, in
each case in form reasonably acceptable to the Trustee).
Temporary Securities of any Series shall be issuable as
Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any
authorized denomination, and substantially in the form of the
definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary
Registered Securities, all as may be determined by the
Corporation with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary
Security shall be executed by the Corporation and be
authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the
definitive Securities. Without unreasonable delay the
Corporation shall execute and shall furnish definitive Securities
of such Series and thereupon temporary Securities of such Series
may be surrendered in exchange therefor without charge to the
Holder at each office or agency to be maintained by the
Corporation for that purpose pursuant to Section 3.2 and, in the
case of Unregistered Securities, at any agency maintained by the
Corporation for such purpose as specified pursuant to Section
2.3, and the Trustee shall authenticate and make available for
delivery in exchange for such temporary Securities of such Series
an equal aggregate principal amount of definitive Securities of
the same Series of authorized denominations and, in the case of
Unregistered Securities having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any
Series shall be entitled to the same benefits under this
Indenture as definitive Securities of such Series. The
provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Unregistered
Securities of any Series that may be established pursuant to
Section 2.3 (including any provision that Unregistered Securities
of such Series initially be issued in the form of a single global
Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedure pursuant to
which definitive or global Unregistered Securities of such Series
would be issued in exchange for such temporary global
Unregistered Security).
ARTICLE III.
COVENANTS OF THE CORPORATION
SECTION A. Payment of Principal and Interest. The
Corporation covenants and agrees for the benefit of each
particular Series of Securities that it will duly and punctually
pay or cause to be paid the principal of, and interest on, each
of the Securities of such Series in accordance with the terms of
such Securities and in the Coupons, if any, appertaining thereto
and in this Indenture. The interest on Securities with Coupons
attached (together with any additional amounts payable pursuant
to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally
mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary
form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the
terms of such Security) shall be paid, as to the installments of
interest evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest,
in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the
written order of the Holders thereof and at the option of the
Corporation may be paid by wire transfer (to Holders of
$10,000,000 or more of Registered Securities) or by mailing
checks for such interest payable to or upon the written order of
such Holders at their last addresses as they appear on the
Security Register.
Notwithstanding the provisions of Section 2.3 and
Section 2.7, unless otherwise specified as contemplated by
Section 2.3, payment of principal of and any interest on any
Security in definitive global form shall be made to the Person or
Persons specified therein.
Except as provided in the preceding paragraph, the
Corporation, the Trustee and any agent of the Corporation and the
Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a definitive
global Security as shall be specified in a written statement of
the Holder of such definitive global Security.
SECTION B. Offices for Payment, etc. So long as
any of the Securities remain Outstanding, the Corporation will
maintain the following for each Series: an office or agency (a)
where the Securities may be presented for payment, (b) where the
Registered Securities may be presented for registration of
transfer and for exchange as provided in this Indenture, (c) if
applicable, an office or agency where the Securities may be
presented for conversion (the "Conversion Agent"), and (d) where
notices and demands may be served upon the Corporation in respect
of the Securities of any Series, the Coupons appertaining
thereto, or this Indenture. The Corporation will maintain one or
more agencies in a city or cities located outside the United
States (including any city in which such an agency is required to
be maintained under the rules of any stock exchange on which the
Securities of such Series are listed) where the Unregistered
Securities, if any, of each Series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on
any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency
of the Corporation within the United States nor will any payment
be made by transfer to an account in, or by mail to an address
in, the United States unless, pursuant to applicable United
States laws and regulations then in effect, such payment can be
made without adverse tax consequences to the Corporation.
Notwithstanding the foregoing, payments in Dollars of
Unregistered Securities of any Series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of
the Corporation within the United States if such payment in
Dollars at each agency maintained by the Corporation outside the
United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other
similar restrictions.
The Corporation will give to the Trustee written notice
of the location of any such office or agency and of any change of
location thereof. In case the Corporation shall fail to so
designate or maintain any such office or agency or shall fail to
give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office. Unless otherwise specified
pursuant to Section 2.3, the Trustee is hereby appointed Paying
Agent and Conversion Agent.
SECTION C. Paying Agents. Whenever the Corporation
shall appoint a Paying Agent other than the Trustee with respect
to the Securities of any Series, it will cause such Paying Agent
to execute and deliver to the Trustee an instrument in which such
Agent shall agree with the Trustee, subject to the provisions of
this Section,
1. that it will hold all sums received by it as such
Agent for the payment of the principal of or interest on the
Securities of such Series (whether such sums have been paid to it
by the Corporation or by any other obligor on the Securities of
such Series) in trust for the benefit of the Holders of the
Securities of such Series, or Coupons appertaining thereto, if
any, or of the Trustee, and upon the occurrence of an Event of
Default and upon the written request of the Trustee, pay over all
such sums received by it to the Trustee, and
2. that it will give the Trustee notice of any
failure by the Corporation (or by any other obligor on the
Securities of such Series) to make any payment of the principal
of or interest on the Securities of such Series when the same
shall be due and payable.
The Corporation will, on or prior to each due date of
the principal of or interest on the Securities of such Series,
deposit in a timely manner with the Paying Agent a sum sufficient
to pay such principal or interest so becoming due, and (unless
such Paying Agent is the Trustee) the Corporation will promptly
notify the Trustee of any failure to take such action.
If the Corporation shall act as its own Paying Agent
with respect to the Securities of any Series, it will, on or
before each due date of the principal of or interest on the
Securities of such Series, set aside, segregate and hold in trust
for the benefit of the Holders of the Securities of such Series
or the Coupons appertaining thereto a sum sufficient to pay such
principal or interest so becoming due. The Corporation will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary
notwithstanding, but subject to Section 10.1, the Corporation may
at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all Series of Securities
hereunder, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust for any such Series by the
Corporation or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Sections 10.3 and
10.4.
SECTION D. Written Statement to Trustee. The
Corporation will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Corporation ending after the
date hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or
accounting officer of the Corporation as to his or her knowledge,
after due inquiry, of the Corporation's compliance with all
conditions and covenants under the Indenture (such compliance to
be determined without regard to any period of grace or
requirement of notice provided under the Indenture), and if the
Corporation shall not be in compliance, specifying all such
defaults or non-compliance and the nature and status thereof.
SECTION E. Luxembourg Publications. In the event
of the publication of any notice pursuant to Section 8.2, 10.4 or
12.2, the party making such publication in the Borough of
Manhattan, The City of New York and London shall also, to the
extent that notice is required to be given to Holders of
Securities of any Series by applicable Luxembourg law or stock
exchange regulations, as evidenced by an Officers' Certificate
delivered to such party, make a similar publication in
Luxembourg.
ARTICLE IV.
SECURITYHOLDERS LISTS AND REPORTS BY THE
CORPORATION AND THE TRUSTEE
SECTION A. Corporation to Furnish Trustee
Information as to Names and Addresses of Securityholders. The
Corporation covenants and agrees that it will furnish or cause to
be furnished to the Trustee a list in such form as the Trustee
may reasonably require of the names and addresses of the Holders
of the Registered Securities of each Series:
1. semiannually and not more than 15 days after each
record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date
and on dates to be determined pursuant to Section 2.3 for
non-interest bearing Registered Securities in each year, and
2. at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the
Corporation of any such request, such list to be as of a
date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security
registrar for such Series and all of the Securities of any Series
are Registered Securities, such list shall not be required to be
furnished.
SECTION B. Preservation and Disclosure of
Securityholders' Lists.
1. The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and
addresses of the Holders of each Series of Registered Securities
contained in the most recent list furnished to it as provided in
Section 4.1 or maintained by the Trustee in its capacity as
Security registrar for such Series, if so acting. The Trustee
may destroy any list furnished to it as provided in Section 4.1
upon receipt of a new list so furnished.
2. In case three or more Holders of Securities of any
Series (hereinafter referred to as "applicants") apply in writing
to the Trustee and furnish to the Trustee reasonable proof that
each such applicant has owned a Security for a period of at least
six months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of a particular Series (in which case
the applicants must all hold Securities of such Series) or with
Holders of all Securities with respect to their rights under this
Indenture or under such Securities and such application is
accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such
application, at its election, either
a. 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
b. inform such applicants as to the approximate
number of Holders of Registered Securities of such Series or
of all Registered Securities, as the case may be, whose
names and addresses appear in the information preserved at
the time by the Trustee, in accordance with the provisions
of subsection (a) of this Section, as to the approximate
cost of mailing to such Securityholders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee shall, upon
the written request of such applicants, mail to each
Securityholder of such Series or all Holders of Registered
Securities, as the case may be, whose name and address appears in
the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section,
a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the
Commission together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of
the Holders of Registered Securities of such Series or of all
Registered Securities, as the case may be, or could 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 such
order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all
the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such
material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty
to such applicants respecting their application.
3. Each and every Holder of Securities and Coupons,
by receiving and holding the same, agrees with the Corporation
and the Trustee that neither the Corporation nor the Trustee nor
any agent of the Corporation or the Trustee shall be held
accountable by reason of the disclosure of any such information
as to the names and addresses of the Holders of Securities in
accordance with the provisions of subsection (b) of this Section,
regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under such
subsection (b).
SECTION C. Reports by the Corporation. The
Corporation covenants:
1. to file with the Trustee, within 15 days after the
Corporation 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
Corporation 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 Corporation is not required
to file information, documents, or reports pursuant to
either of such Sections, then to file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents, and
reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, 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;
2. to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents, and reports with respect to compliance by the
Corporation with the conditions and covenants provided for
in this Indenture as may be required from time to time by
such rules and regulations; and
3. to transmit by mail to the Holders of Securities
in the manner and to the extent required by Sections 6.6 and
11.4, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents, and
reports required to be filed by the Corporation pursuant to
subsections (a) and (b) of this Section as may be required
to be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
ARTICLE V.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION A. Event of Default Defined; Acceleration
of Maturity; Waiver of Default. "Event of Default" with respect
to Securities of any Series wherever used herein, means any one
of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative
or governmental body) unless it is either inapplicable to a
particular Series or it is specifically deleted or modified in or
pursuant to the supplemental indenture or resolution of the Board
of Directors establishing such Series of Securities or in the
form of Security for such Series:
1. default in the payment of any installment of
interest upon any of the Securities of such Series as and
when the same shall become due and payable, and continuance
of such default for a period of 30 days; or
2. default in the payment of all or any part of the
principal of any of the Securities of such Series as and
when the same shall become due and payable, either at
Maturity, upon any redemption, by declaration or otherwise;
or
3. default in the performance, or breach of any
covenant or warranty of the Corporation contained in the
Securities of such Series or in this Indenture (other than a
covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with
or which has expressly been included in this Indenture
solely for the benefit of a Series of Securities other than
that Series), and continuance of such default or breach for
a period of 90 days after there has been given, by
registered or certified mail, to the Corporation by the
Trustee or to the Corporation and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding
Securities of that Series a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
or
4. the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Corporation in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order
adjudging the Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or
in respect of the Corporation under any applicable Federal
or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Corporation or of all or any substantial
part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days;
or
5. the commencement by the Corporation of a voluntary
case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law
or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Corporation
in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Corporation or of
all or any substantial part of its property, or the making
by it of an assignment for the benefit of creditors; or
6. any other Event of Default provided with respect
to Securities of such Series.
If an Event of Default occurs and is continuing with respect to
the Securities of any Series, then and in each and every such
case, unless the principal of all Securities of such Series shall
have already become due and payable, either the Trustee for such
Series or the Holders of not less than 25% in aggregate principal
amount of the Securities of such Series then Outstanding
hereunder, by notice in writing to the Corporation (and to the
Trustee if given by such Holders), may declare the entire
principal (or, if the Securities of such affected Series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such Series) of all
the Securities of such Series to be due and payable immediately,
and upon any such declaration the same shall become and shall be
immediately due and payable. This provision, however, is subject
to the condition that if at any time after the principal (or, if
the Securities of such affected Series are Original Issue
Discount Securities, such portion of the principal amount as may
be specified in the terms of such Series) of the Securities of
such Series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the
Corporation shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any,
upon all the Securities of such Series and the principal of any
and all Securities of such Series which shall have become due
otherwise than by such acceleration (with interest upon such
principal and, to the extent that payment of such interest is
enforceable under applicable law, upon overdue installments of
interest, at the same rate as the rate of interest or yield to
maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such Series to the date of such
payment or deposit) and in Dollars such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its
agents, attorneys and counsel and all other expenses and
liabilities incurred, and all advances with interest made, by the
Trustee, its agents, attorneys and counsel and if any and all
defaults under this Indenture, other than the nonpayment of the
principal of Securities of such Series which shall have become
due by such acceleration, shall have been remedied, then and in
every such case the Holders of a majority in aggregate principal
amount of the Securities of such Series then Outstanding, by
written notice to the Corporation and to the Trustee for the
Securities of such Series, may waive all defaults and rescind and
annul such declaration and its consequences; but no such waiver
or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of
the principal of any Original Issue Discount Securities shall
have been accelerated and declared due and payable pursuant to
the provisions hereof, then, from and after such declaration,
unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of the Original Issue Discount Securities.
SECTION B. Collection of Indebtedness By Trustee;
Trustee May Prove Debt. The Corporation covenants that (a) in
case default shall be made in the payment of any installment of
interest on any of the Securities of any Series when such
interest shall have become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case
default shall be made in the payment of all or any part of the
principal of any of the Securities of any Series when the same
shall have become due and payable, whether upon Maturity or upon
any redemption or by declaration or otherwise, then upon demand
of the Trustee for the Securities of such Series, the Corporation
will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series the whole
amount that then shall have become due and payable on all
Securities of such Series for principal of or interest, as the
case may be (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest
or yield to maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such Series); and in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable
compensation to, and all expenses and liabilities incurred and
all advances with interest made by, the Trustee and each
predecessor Trustee except as a result of its negligence or bad
faith.
Until such demand is made by the Trustee, the
Corporation may pay the principal of and interest on the
Securities of any Series to the Persons entitled thereto, whether
or not the principal of and interest on the Securities of such
Series are overdue.
In case the Corporation shall fail forthwith to pay
such amounts upon such demand, the Trustee for the Securities of
such Series, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so
due and unpaid, and may prosecute any such action or proceedings
to judgment or final decree, and may enforce any such judgment or
final decree against the Corporation or other obligor upon such
Securities and collect in the manner provided by law out of the
property of the Corporation or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the
Corporation or any other obligor upon the Securities under Title
11 of the United States Code or any other applicable Federal or
State bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Corporation or its
property or such other obligor, or in case of any other
comparable judicial proceedings relative to the Corporation or
other obligor under the Securities of any Series, or to the
creditors or property of the Corporation or such other obligor,
the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
1. to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of
any Series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the
terms of such Series) owing and unpaid in respect of the
Securities of any Series, and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for
reasonable compensation to, and all expenses and liabilities
incurred and all advances with interest made by, the Trustee
and each predecessor Trustee, and their respective agents,
attorneys and counsel, except as a result of negligence or
bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Corporation or other
obligor upon all Securities of any Series, or to the
creditors or property of the Corporation or such other
obligor, and
2. to collect and receive any moneys or other
property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims
of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee for the
Securities of such Series, and, in the event that such
Trustee shall consent to the making of payments directly to
the Securityholders, to pay to such Trustee such amounts as
shall be sufficient to cover reasonable compensation to, and
all expenses and liabilities incurred and all advances with
interest made by, such Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel and all other
amounts due to such Trustee or any predecessor Trustee
pursuant to Section 6.7, except as a result of Trustee's
negligence or bad faith.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of any Series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities or Coupons appertaining
to such Securities, may be enforced by the Trustee for the
Securities of such Series or Coupons without the possession of
any of the Securities of such Series or Coupons appertaining to
such Securities or the production thereof at any trial or other
proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and
compensation of the Trustee, each predecessor Trustee and their
respective agents and attorneys, shall be for the ratable benefit
of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee for the
Securities of such Series (and also any proceedings involving the
interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent
all the Holders of the Securities or Coupons appertaining to such
Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Securities or
Coupons appertaining to such Securities parties to any such
proceedings.
SECTION C. Application of Proceeds. Any moneys
collected by the Trustee for the Securities of such Series
pursuant to this Article in respect of the Securities of any
Series shall be applied in the following order at the date or
dates fixed by such Trustee and, in case of the distribution of
such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining
to such Securities in respect of which moneys have been collected
and stamping (or otherwise noting) thereon the payment, or
issuing Securities of such Series in reduced principal amounts in
exchange for the presented Securities of like Series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of reasonable costs and
expenses applicable to such Series in respect of which
moneys have been collected, including reasonable
compensation to, and all reasonable expenses and liabilities
incurred and all advances with interest made by, the Trustee
and each predecessor Trustee and their respective agents and
attorneys and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.7, except as a
result of Trustee's negligence or bad faith;
SECOND: To the payment of the amounts then due and
unpaid for interest on the Securities of such Series for
which principal is not yet due and payable in respect of
which moneys have been collected, such payments to be made
ratably to the Persons entitled thereto, without
discrimination or preference, according to the amounts then
due and payable on such Securities for interest;
THIRD: To the payment of the amounts then due and
unpaid for principal of and interest on the Securities of
such Series for which principal is due and payable in
respect of which moneys have been collected, such payments
to be made ratably to the Persons entitled thereto without
discrimination or preference, according to the amounts then
due and payable on such Securities for principal and
interest, respectively; and
FOURTH: To the payment of the remainder, if any, to
the Corporation or any other Person lawfully entitled
thereto.
SECTION D. Restoration of Rights on Abandonment of
Proceedings. In case the Trustee for the Securities of any
Series or any Holder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been
determined adversely to the Trustee or to such Holder, then and
in every such case, subject to the determination in any such
proceeding, the Corporation, the Trustee and the Holders shall be
restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the
Corporation, the Trustee and the Securityholders shall continue
as though no such proceedings had been taken.
SECTION E. Limitations on Suits by Securityholders.
No Holder of any Security of any Series or of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less
than 25% in aggregate principal amount of the Securities of such
Series then Outstanding shall have made written request upon the
Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity, as it may require, against the costs,
expenses and liabilities to be incurred therein or thereby and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee during such
60-day period by Holders of a majority in principal amount of the
Securities of such Series then Outstanding; it being understood
and intended, and being expressly covenanted by the taker and
Holder of every Security or Coupon with every other taker and
Holder of a Security or Coupon and the Trustee, that no one or
more Holders of Securities of any Series or Coupons appertaining
to such Securities shall have any right in any manner whatever,
by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other such Holder
of Securities or Coupons appertaining to such Securities, or to
obtain or seek to obtain priority over or preference to any other
such Holder or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable
Series and Coupons appertaining to such Securities.
SECTION F. Unconditional Right of Securityholders
to Institute Certain Suits. Notwithstanding any provision in
this Indenture and any provision of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and (subject to Section 2.7) interest on such
Security or Coupon at the respective rates, in the respective
amount on or after the respective due dates expressed in such
Security or Coupon, and to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION X. Xxxxxx and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Section
2.9 and Section 5.5, no right or remedy herein conferred upon or
reserved to the Trustee or to the Securityholders is intended to
be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any
Securityholder to exercise any right or power accruing upon any
Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 5.5, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may
be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or the Securityholders.
SECTION H. Control by Securityholders. The Holders
of a majority in aggregate principal amount of the Securities of
each Series affected (with each Series treated as a separate
class) at the time Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee with respect to the Securities of such
Series by this Indenture; provided that such direction shall not
be otherwise than in accordance with law and the provisions of
this Indenture and provided further that the Trustee, being
advised by counsel, shall have the right to decline to follow any
such direction if the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such
direction would be unduly prejudicial to the interests of Holders
of the Securities of all Series so affected not joining in the
giving of said direction.
SECTION I. Waiver of Past Defaults. The Holders of
not less than a majority in aggregate principal amount of the
Securities of any Series at the time Outstanding may on behalf of
the Holders of all the Securities of such Series waive any past
default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities
of such Series.
Upon any such waiver, such default shall cease to exist
and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have
been cured and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
SECTION J. Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree,
and each Holder of any Security or Coupon, by his acceptance
thereof, shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the
Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party
litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders of any Series holding
in the aggregate more than 10% in aggregate principal amount of
the Securities of such Series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date
expressed in such Security or any date fixed for redemption.
SECTION K. Suits for Enforcement. In case an Event
of Default has occurred, has not been waived and is continuing,
the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
ARTICLE VI.
CONCERNING THE TRUSTEE
SECTION A. Duties of Trustee.
1. If an Event of Default has occurred and is
continuing with respect to the Securities of any Series, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
2. Except during the continuance of an Event of
Default with respect to the Securities of any Series:
a. the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others;
and
b. in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming on their face to the requirements of
this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform on their face to the
requirements of this Indenture.
3. The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
a. this paragraph (c) does not limit the effect of
paragraph (b) of this Section 6.1;
b. the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless
it is proved that the Trustee was negligent in ascertaining
the pertinent facts; and
c. the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 5.8.
4. Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and
(e) of this Section 6.1.
5. The Trustee may refuse to perform any duty or
exercise any right or power or extend or risk its own funds
or otherwise incur any financial liability unless it receives
indemnity satisfactory to it against any loss, liability or
expense.
6. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed in
writing with the Corporation.
SECTION B. Rights of Trustee. Subject to Section
6.1 and the provisions of the Trust Indenture Act:
1. The Trustee may rely on any document believed by
it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or
matter stated in the document.
2. Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of Counsel.
The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers' Certificate
or Opinion of Counsel.
3. Subject to the provisions of Section 6.1(c), the
Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within
its rights or powers.
4. The Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel.
5. The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
6. The Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION C. Individual Rights of Trustee. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Securities or Coupons and may otherwise deal
with the Corporation or its affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, registrar
or coregistrar may do the same with like rights. However, the
Trustee must comply with Sections 6.10 and 6.11.
SECTION D. Trustee's Disclaimer. The Trustee makes
no representation as to the validity or adequacy of this
Indenture or the Securities or Coupons, it shall not be
accountable for the Corporation's use of the proceeds from the
Securities, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities
Act of 1933 or in the Indenture or the Securities (other than its
certificate of authentication).
SECTION E. Notice of Defaults. If a default occurs
and is continuing with respect to any Securities of any Series
and if it is known to the Trustee through oral or written notice
to a corporate trust officer, the Trustee shall give to each
Securityholder of such Series notice of the default within 90
days after such default occurs. Except in the case of a default
described in Section 5.1(a) or (b), the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the
interests of Securityholders of such Series.
SECTION F. Reports by Trustee to Holders. Within
60 days after each June 1 beginning with the June 1 following the
date of this Indenture, the Trustee shall mail to each
Securityholder of any Series and each other Person specified in
TIA Section 313(c) a brief report dated as of such June 1 that
complies with TIA Section 313(a) to the extent required thereby.
The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders of any Series shall be filed with the Commission
and each securities exchange on which the Securities of any
Series are listed. The Corporation agrees promptly to notify the
Trustee whenever the Securities of any Series become listed on
any securities exchange and of any delisting thereof.
SECTION G. Compensation and Indemnity. The
Corporation agrees:
1. to pay to the Trustee from time to time in Dollars
such compensation as shall be agreed to in writing between
the Corporation and the Trustee for all services rendered by
it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
2. to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances with
interest thereon incurred or made by the Trustee in
accordance with any provision of this Indenture (including
the reasonable compensation and the expenses, advances with
interest thereon and disbursements of its agents and
counsel), except to the extent any such expense,
disbursement or advance may be attributable to its
negligence or bad faith; and
3. to indemnify the Trustee in Dollars for, and to
hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or
administration of this trust or the performance of its
duties hereunder, including the costs and expenses of
defending itself against any claim or liability in
connection with the exercise or performance of any of its
powers or duties hereunder (including the reasonable
compensation and the expenses, advances with interest
thereon and disbursements of its agents and counsel), except
to the extent that any such loss, liability or expense may
be attributable to its negligence or bad faith.
As security for the performance of the obligations of
the Corporation in this Section 6.7, the Trustee shall have a
lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the
principal of or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any
predecessor Trustee, provided that the negligence or bad faith of
any Trustee shall not be attributable to any other Trustee.
The Corporation's payment obligations pursuant to this
Section 6.7 shall survive the discharge of this Indenture. When
the Trustee incurs expenses after the occurrence of a default
specified in Sections 5.1(d) and 5.1(e), such expenses are
intended to constitute expenses of administration under
bankruptcy law.
SECTION H. Replacement of Trustee. The Trustee may
resign at any time with respect to Securities of one or more
Series by so notifying the Corporation; provided, however, no
such resignation shall be effective until a successor Trustee has
accepted its appointment pursuant to this Section 6.8. The
Holders of a majority in aggregate principal amount of the
Outstanding Securities of any Series may remove the Trustee with
respect to such Series at the time Outstanding by so notifying
the Trustee and the Corporation. The Corporation shall remove
the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to
the Securities of one or more Series, the Corporation shall
promptly appoint, by resolution of its Board of Directors, a
successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the
Corporation. Thereupon the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture with respect to the Securities of
such Series. The successor Trustee shall mail a notice of its
succession to Securityholders so affected. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section
6.7.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Corporation or the Holders of a majority in
aggregate principal amount of the Securities at the time
Outstanding may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any
Securityholder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
SECTION I. Successor Trustee by Xxxxxx. If the
Trustee consolidates with, merges or converts into, or transfers
all or substantially all its corporate trust business or assets
to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor
Trustee.
SECTION J. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1) and Section 310(a)(5). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b).
SECTION K. Preferential Collection of Claims
Against Corporation. The Trustee shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VII.
CONCERNING THE SECURITYHOLDERS
SECTION A. Evidence of Action Taken by
Securityholders.
1. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all Series may
be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage
of Securityholders in Person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Corporation, if made in the manner provided in this Article.
2. In the case of Registered Securities, the
ownership of such Securities shall be proved by the Security
Register.
SECTION B. Proof of Execution of Instruments.
Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
SECTION C. Holders to Be Treated as Owners. The
Corporation, the Trustee and any agent of the Corporation or the
Trustee may deem and treat the Person in whose name any Security
shall be registered upon the Security Register for such Series as
the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or
on account of the principal of and (subject to Section 2.7)
interest on such Security and for all other purposes; and neither
the Corporation nor the Trustee nor any agent of the Corporation
or the Trustee shall be affected by any notice to the contrary.
The Corporation, the Trustee and any agent of the Corporation or
the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes
and neither the Corporation, the Trustee, nor any agent of the
Corporation or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such Person, or upon
his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Unregistered Security or Coupon.
SECTION D. Securities Owned by Corporation Deemed
Not Outstanding. In determining whether the Holders of the
requisite aggregate principal amount of Outstanding Securities of
any or all Series have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the
Corporation or any other obligor on the Securities with respect
to which such determination is being made or by any Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Corporation or any
other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not
to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are so owned shall
be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Corporation or any other obligor upon the
Securities or any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Corporation or any other obligor on the Securities.
SECTION E. Right of Revocation of Action Taken. At
any time prior to (but not after) the evidencing to the Trustee,
as provided in Section 7.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the
Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all Series, as the
case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Corporation, the
Trustee and the Holders of all the Securities affected by such
action.
ARTICLE VIII.
SUPPLEMENTAL INDENTURES
SECTION A. Supplemental Indentures Without Consent
of Securityholders. The Corporation, when authorized by a
resolution of its Board of Directors, and the Trustee for the
Securities of any and all Series may from time to time and at any
time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act
as in force at the date of the execution thereof), in form
satisfactory to such Trustee, for one or more of the following
purposes:
1. to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
Series any property or assets;
2. to evidence the succession of another corporation
to the Corporation, or successive successions, and the
assumption by the successor corporation of the covenants,
agreements and obligations of the Corporation pursuant to
Article IX;
3. to add to the covenants of the Corporation such
further covenants, restrictions, conditions or provisions
for the protection of the Holders of Securities of any or
all Series or of Coupons and, if such additional covenants
are to be for the benefit of less than all the Series of
Securities or Coupons stating that such covenants are being
added solely for the benefit of such Series;
4. 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 or under
any supplemental indenture as the Board of Directors may
deem necessary or desirable and which shall not materially
and adversely affect the interests of the Holders of the
Securities or Coupons;
5. to establish the form or terms of Securities of
any Series or of the Coupons appertaining to such Securities
as permitted by Sections 2.1 and 2.3;
6. to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more Series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than the one Trustee, pursuant
to the requirements of Section 6.8; or
7. to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Outstanding
Security of any Series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision.
The Trustee is hereby authorized to join with the
Corporation in the execution of any such supplemental indenture,
to make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions
of this Section may be executed without the consent of the
Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 8.2.
SECTION B. Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article VII) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental
indenture (voting as one class), the Corporation, when authorized
by a resolution of its Board of Directors, and the Trustee for
such Series of Securities may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in
force at the date of execution thereof) for the purpose of adding
any provisions to or changing in any manner or eliminating any of
the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders
of the Securities of each such Series or of the Coupons
appertaining to such Securities; provided, however, that no such
supplemental indenture shall (a) extend the Stated Maturity of
any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption
thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable
in any coin or currency other than that provided in the
Securities and Coupons or in accordance with the terms thereof,
or reduce the amount of the principal of the Original Issue
Discount Security that would be due and payable upon an
acceleration of the Maturity thereof pursuant to Section 5.1 or
the amount thereof provable in bankruptcy pursuant to Section
5.2, or alter the provisions of Section 11.11, or impair or
affect the right of any Securityholder to institute suit for
payment thereof or, if the Securities provide therefor, any right
of repayment at the option of the Securityholder without the
consent of the Holder of each Security so affected, (b) reduce
the aforesaid percentage of Securities of any Series, the consent
of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of each Security so
affected or (c) modify the provisions of Article XIII hereof in a
manner which is materially adverse to the Holders of any Series
of Securities then Outstanding.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more
particular Series of Securities, or which modifies the rights of
Holders of Securities of such Series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision,
shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other Series or of the Coupons
appertaining to such Securities.
Upon the request of the Corporation, accompanied by a
copy of a resolution of the Board of Directors certified by the
secretary or an assistant secretary of the Corporation
authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of
evidence of the consent of Securityholders as aforesaid and other
documents, if any, required by Section 7.1, the Trustee for such
Series of Securities shall join with the Corporation in the
execution of such supplemental indenture unless such supplemental
indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case such Trustee may
in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Corporation and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Corporation shall give notice thereof (i) to
the Holders of then Outstanding Registered Securities of each
Series affected thereby, by mailing a notice thereof by first-
class mail to such Holders at their addresses as they shall
appear on the Security Register, (ii) if any Unregistered
Securities of a Series affected thereby are then Outstanding, to
the Holders thereof who have filed their names and addresses with
the Trustee, by mailing a notice thereof by first-class mail to
such Holders at such addresses as were so furnished to the
Trustee and (iii) if any Unregistered Securities of a Series
affected thereby are then Outstanding, to all Holders thereof, by
publication of a notice thereof at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if
required by Section 3.5, at least once in an Authorized Newspaper
in Luxembourg), and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any
failure of the Corporation 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 C. Effect of Supplemental Indenture. Every
supplemental indenture executed pursuant to this Article VIII
shall conform to the requirements of the Trust Indenture Act.
Upon the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Corporation and the
Holders of Securities of each Series affected thereby shall
thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION D. Documents to Be Given to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, shall
receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed
pursuant to this Article VIII complies with the applicable
provisions of this Indenture.
SECTION E. Notation on Securities in Respect of
Supplemental Indentures. Securities of any Series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article VIII may bear, upon
the direction of the Corporation, a notation in form satisfactory
to the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Corporation
or the Trustee shall so determine, new Securities of any Series
so modified as to conform, in the opinion of the Trustee and the
Corporation, to any modification of this Indenture contained in
any such supplemental indenture may be prepared by the
Corporation, authenticated by the Trustee and delivered in
exchange for the Securities of such Series then Outstanding.
SECTION F. Subordination Unimpaired. This
Indenture may not be amended to alter the subordination of any
Outstanding Securities without the written consent of each holder
of Senior Indebtedness then outstanding that would be materially
adversely affected thereby.
ARTICLE IX.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION A. Corporation May Consolidate, etc., on
Certain Terms. The Corporation may sell, convey or lease all or
substantially all of its assets to any Person, or consolidate
with or merge into, any other corporation, provided that in any
such case, (i) either the Corporation shall be the continuing
corporation, or the successor corporation or Person which
acquires by sale or conveyance all or substantially all of the
assets of the Corporation shall be a corporation or other entity
organized and validly existing under the laws of the United
States of America or any State thereof or the District of
Columbia and shall expressly assume the due and punctual payment
of the principal of and interest on all the Securities according
to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Corporation by
supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation or entity, and (ii)
immediately after such merger or consolidation, or such sale,
conveyance or lease, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
SECTION B. Successor Corporation Substituted. In
case of any such consolidation, merger, sale, lease or
conveyance, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for the Corporation, with the same effect as if it
had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of
the Corporation prior to such succession any or all of the
Securities issuable hereunder which, together with any Coupons
appertaining thereto, theretofore shall not have been signed by
the Corporation and delivered to the Trustee; and, upon the order
of such successor corporation instead of the Corporation and
subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall
make available for delivery any Securities, together with any
Coupons appertaining thereto, which previously shall have been
signed and delivered by the officers of the Corporation to the
Trustee for authentication, and any Securities, together with any
Coupons appertaining thereto, which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All of the Securities so issued, together with
any Coupons appertaining thereto, shall in all respects have the
same legal rank and benefit under this Indenture as the
Securities and Coupons theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such
Securities and Coupons had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease
or conveyance such changes in phraseology and form (but not in
substance) may be made in the Securities and Coupons thereafter
to be issued as may be appropriate.
In the event of any such sale or conveyance (other than
conveyance by way of lease) the Corporation (or any successor
corporation which shall theretofore have become such in the
manner described in this Article) shall be discharged from all
obligations and covenants under this Indenture and the Securities
and may be liquidated and dissolved.
SECTION C. Opinion of Counsel to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Opinion of Counsel, prepared in accordance with
Section 11.5, as conclusive evidence that any such consolidation,
merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable
provisions of this Indenture.
ARTICLE I
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION A. Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Corporation shall have paid
or caused to be paid the principal of and interest on all the
Securities of any Series Outstanding hereunder and all unmatured
Coupons appertaining thereto (other than Securities of such
Series and Coupons appertaining thereto which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become
due and payable, or (b) the Corporation shall have delivered to
the Trustee for cancellation all Securities of any Series
theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities of such Series and Coupons
appertaining thereto which have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section
2.9) or (c) in the case of any Series of Securities where the
exact amount (including the currency of payment) of principal of
and interest due on such Securities can be determined at the time
of making the deposit referred to in clause (ii) below, (i) all
the Securities of such Series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Corporation shall have irrevocably
deposited or caused 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 Corporation in accordance with Section
10.4) or Government Obligations maturing as to principal and
interest in such amounts and at such times as will ensure the
availability of cash sufficient in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
(A) the principal and interest on all Securities of such Series
and Coupons appertaining thereto on each date that such principal
or interest is due and payable and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable
in accordance with the terms of the Indenture and the Securities
of such Series and if, in any such case, the Corporation shall
also pay or cause to be paid all other sums payable hereunder by
the Corporation with respect to Securities of such Series, then
this Indenture shall cease to be of further effect with respect
to Securities of such Series (except as to (i) rights of
registration of transfer and exchange, and the Corporation's
right of optional redemption (provided the Corporation provides
sufficient funds to effect such optional redemption), (ii)
substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of Holders to receive
payments of principal thereof and interest thereon upon the
original stated due dates therefor (but not upon acceleration)
and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations and
immunities of the Trustee hereunder, and (v) the rights of the
Securityholders of such Series and Coupons appertaining thereto
as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them), and, subject to
Section 10.5, the Trustee, on demand of the Corporation
accompanied by an Officers' Certificate and an Opinion of Counsel
and at the cost and expense of the Corporation, shall execute
proper instruments acknowledging such satisfaction of and
discharging this Indenture with respect to such Series; provided,
that the rights of Holders of the Securities and Coupons to
receive amounts in respect of principal of and interest on the
Securities and Coupons held by them shall not be delayed longer
than required by then applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed.
The Corporation agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this
Indenture and the Securities of such Series.
(B) a. In addition to the provisions of Section
10.1(A), the Corporation may, at its option by or pursuant to, or
otherwise in a manner or by such Persons as may be authorized
pursuant to, one or more resolutions duly adopted by the Board of
Directors, at any time with respect to the Securities of any
Series, elect to have defeasance under subsection (ii) of this
Section 10.1(B) be applied to the Outstanding Securities of such
Series provided that provision therefor is made for such
application pursuant to Section 2.3 and the applicable conditions
thereto as set forth in this Section 10.1(B) have been satisfied.
b. Upon the Corporation's exercise of the option
referenced in Section 10.1(B)(i), the Corporation may terminate
its obligations under the Outstanding Securities of any Series
and this Indenture with respect to such Series on the date the
conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the
Corporation shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of
such Series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense and request of the
Corporation, shall execute proper instruments acknowledging the
same), except for the following: (1) the rights of Holders of
Outstanding Securities of such Series to receive payments in
respect of the principal of and interest on such Securities when
such payments are due, (2) the Corporation's obligations with
respect to such Securities under Sections 2.8, 2.9, 2.11, 3.2,
6.7, 10.4 and 10.5, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and (4) this Section
10.1(B).
c. The following shall be the conditions to the
application of Section 10.1(B)(ii) to the Outstanding Securities
of such Series:
1. The Corporation shall have irrevocably deposited
or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.10 who
shall agree to comply with the provisions of this Section
and Section 10.1(B) applicable to it) under the terms of an
irrevocable trust agreement, as trust funds in trust solely
for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of Securities of such Series,
(i) cash in the currency or currency unit required, or (ii)
Government Obligations maturing as to principal and interest
in such amounts (payable in the currency in which the
Securities of such Series are payable) and at such times as
are sufficient, to pay the principal of and interest on the
Outstanding Securities of such Series to Maturity or
redemption, as the case may be, or (iii) a combination
thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay
and discharge, (x) the principal of and each installment of
principal of and interest, if any, on the Outstanding
Securities of such Series and Coupons appertaining thereto
on the Stated Maturity of such principal or installment of
principal or interest, if any, and (y) any mandatory sinking
fund payments or analogous payments applicable to the
Outstanding Securities of such Series on the day on which
such payments are due and payable in accordance with the
terms of this Indenture and of such Securities. Such
irrevocable trust agreement shall include, among other
things, (i) provision for the payments referenced in clauses
(x) and (y) of the immediately preceding sentence, (ii) the
payment of the reasonable expenses of the Trustee incurred
or to be incurred in connection with carrying out such trust
provisions, (iii) rights of registration, transfer,
substitution and exchange of Securities of such Series in
accordance with the terms stated in this Indenture and (iv)
continuation of the rights and obligations and immunities of
the Trustee as against the Holders of Securities of such
Series as stated in this Indenture.
2. No Event of Default or event which with notice or
lapse of time or both would constitute an Event of Default
with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit or, insofar as
Sections 5.1(d) and 5.1(e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period).
3. Such deposit or defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to
which the Corporation is a party or by which it is bound.
4. The Corporation shall have delivered to the
Trustee an Opinion of Counsel of recognized national
standing to the effect that Securityholders of such Series
will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit and discharge and
will be subject to Federal income tax on the same amounts
and in the same manner and at the same time as would have
been the case if such deposit and defeasance had not
occurred.
5. The Corporation shall have delivered to the
Trustee an Officers' Certificate and Opinion of Counsel,
each stating that all conditions precedent provided for
herein relating to the deposit and defeasance contemplated
by this Section 10.1(B) have been complied with.
SECTION B. Application by Trustee of Funds
Deposited for-Payment of Securities. Subject to Section 10.4,
all moneys deposited with the Trustee pursuant to Section 10.1
shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Corporation
acting as its own Paying Agent), to the Holders of the particular
Securities of such Series and of Coupons appertaining thereto for
the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION C. Repayment of Moneys Held by Paying
Agent. In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any Series, all moneys
then held by any Paying Agent (other than the Corporation) under
the provisions of this Indenture with respect to such Series of
Securities shall, upon demand of the Corporation, be paid to the
Trustee and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
SECTION D. Return of Unclaimed Moneys Held by
Trustee and Paying Agent. Any moneys deposited with or paid to
the Trustee or any Paying Agent (including the Corporation acting
as its own Paying Agent) for the payment of the principal of or
interest on any Security of any Series or Coupons attached
thereto and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have
become due and payable, shall, upon the written request of the
Corporation, promptly be repaid to the Corporation by the Trustee
for such Series or such Paying Agent (except that with respect to
any amounts then held by the Corporation in trust as its own
Paying Agent no such request need be given and at such time the
Corporation shall be discharged from its duty to hold such moneys
in trust as Paying Agent), and the Holder of the Securities of
such Series and of any Coupons appertaining thereto shall, unless
otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property laws, thereafter look only to
the Corporation for any payment which such Holder may be entitled
to collect, and all liability of the Trustee or any Paying Agent
with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered
Securities of any Series, shall at the expense of the
Corporation, mail by first-class mail to Holders of such
Securities at their addresses as they shall appear on the
Security Register, and (b) in respect of Unregistered Securities
of any Series, shall at the expense of the Corporation cause to
be published once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and once in an Authorized
Newspaper in London (and if required by Section 3.5, once in an
Authorized Newspaper in Luxembourg), notice, that such moneys
remain and that, after a date specified therein, which shall not
be less than thirty days from the date of such mailing or
publication, any unclaimed balance of such money then remaining
will be repaid to the Corporation. Anything in this Article X to
the contrary notwithstanding, the Trustee shall deliver or pay to
the Corporation from time to time upon the written request of the
Corporation any money or Government Obligations held by it as
provided in Section 10.1(B)(iii) which, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect such defeasance in accordance
with the provisions of this Indenture.
SECTION E. Reinstatement of Corporation's
Obligations. If the Trustee is unable to apply any funds or
Government Obligations in accordance with Section 10.1 by reason
of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Corporation's
obligations under this Indenture and the Securities of any Series
for which such application is prohibited shall be revived and
reinstated as if no deposit had occurred pursuant to Section 10.1
until such time as the Trustee is permitted to apply all such
funds or Government Obligations in accordance with Section 10.1;
provided, however, that if the Corporation has made any payment
of interest on or principal of any of such Securities because of
the reinstatement of its obligations, the Corporation shall be
subrogated to the rights of the Securityholders of such
Securities to receive such payment from the funds or Government
Obligations held by the Trustee.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
SECTION A. Incorporators, Stockholders, Officers
and Directors of Corporation Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security, in any Coupon or
because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or
future stockholder, officer or director, as such, of the
Corporation or of any successor, either directly or through the
Corporation or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance
of the Securities and the Coupons appertaining thereto by the
Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
SECTION B. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this
Indenture or in the Securities or the Coupons appertaining
thereto, expressed or implied, shall give or be construed to give
to any Person, firm or corporation, other than the parties
hereto, any Paying Agent and their successors hereunder, the
holders of Senior Indebtedness and the Holders of the Securities
or Coupons any legal or equitable right, remedy or claim under
this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons.
SECTION C. Successors and Assigns of Corporation
Bound by Indenture. All the covenants, stipulations, promises
and agreements in this Indenture contained by or on behalf of the
Corporation shall bind its successors and assigns, whether so
expressed or not.
SECTION D. Notices and Demands on Corporation,
Trustee and Securityholders. Any notice or demand which by any
provision of this Indenture is required or permitted to be given
or served by the Trustee or by the Holders of Securities or
Coupons to or on the Corporation may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of
the Corporation is filed by the Corporation with the Trustee) to
USG Corporation, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: _________________. Any notice, direction,
request or demand by the Corporation or any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made at the Corporate
Trust Office.
Where this Indenture provides for notice to Holders of
Registered Securities of any event such notice shall be
sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to
such Holders as their names and addresses appear in the Security
Register within the time prescribed. Where this Indenture
provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in
any notice so mailed to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given.
In case, by reason of the suspension of or
irregularities in regular mail service, it shall be impracticable
to mail notice to the Corporation and Securityholders when such
notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION E. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein. Upon any
application or demand by the Corporation to the Trustee to take
any action under any of the provisions of this Indenture, the
Corporation shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, 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, if any, have been
complied with, except that in the case of any such application or
demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating
to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture shall
include (a) a statement that the Person making such certificate
or opinion has read such covenant or condition and the
definitions herein relating thereto, (b) a brief statement as to
the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or
opinion are based, (c) a statement that, in the opinion of such
Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with
and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of
the Corporation may be based, insofar as it relates to legal
matters, upon a certificate or opinion of or representations by
counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or
Opinion of Counsel may be based, insofar as it relates to factual
matters or information with respect to which is in the
possession of the Corporation, upon the certificate, statement or
opinion of or representations by an officer or officers of the
Corporation, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of
the Corporation or of counsel may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Corporation, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which
his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with and directed to the Trustee shall
contain a statement that such firm is independent.
SECTION F. Payments Due on Saturdays, Sundays and
Holidays. Unless otherwise specified in a Security, if the date
of Maturity of interest on or principal of the Securities of any
Series or any Coupons appertaining thereto or the date fixed for
redemption or repayment of any such Security or Coupon shall not
be a Business Day, then payment of interest or principal need not
be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the
date of Maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
SECTION G. Conflict of Any Provision of Indenture
with Trust Indenture Act. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required by
the Trust Indenture Act, such required provision shall control.
SECTION H. New York Law to Govern. This Indenture
and each Security and any Coupon appertaining thereto shall be
deemed to be a contract under the laws of the State of New York,
and for all purposes shall be construed in accordance with the
laws of such State.
SECTION I. 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 J. Effect of Headings; Gender. The Article
and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
The use of the masculine, feminine or neuter gender herein shall
not limit in any way the applicability of any term or provision
hereof.
SECTION K. Securities in a Foreign Currency or in
ECU. Unless otherwise specified in an Officers' Certificate
delivered pursuant to Section 2.3 of this Indenture with respect
to a particular Series of Securities, whenever for purposes of
this Indenture any action may be taken by the Holders of a
specified percentage in aggregate principal amount of Securities
of all Series or all Series affected by a particular action at
the time Outstanding and, at such time, there are Outstanding
Securities of any Series which are denominated in a coin or
currency other than Dollars (including ECUs), then the principal
amount of Securities of such Series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that
amount of Dollars that could be obtained for such amount at the
Market Exchange Rate. For purposes of this Section 11.11,
"Market Exchange Rate" shall mean the noon Dollar buying rate for
that currency for cable transfers quoted in The City of New York
as certified for customs purposes by the Federal Reserve Bank of
New York; provided, however, in the case of ECUs, "Market
Exchange Rate" shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto)
as published in the Official Journal of the European Communities
(such publication or any successor publication, the "Journal").
If such Market Exchange Rate is not available for any reason with
respect to such currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York or, in the case of ECUs, the
rate of exchange as published in the Journal, as of the most
recent available date, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in The City of New
York or in the country of issue of the currency in question,
which for purposes of the ECU shall be Brussels, Belgium, or such
other quotations or, in the case of ECU, rates of exchange as the
Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in
respect of Securities of a Series denominated in a currency other
than Dollars in connection with any action taken by holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative
determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and irrevocably binding upon the
Corporation and all Holders.
ARTICLE XII.
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION A. Applicability of Article. The
provisions of this Article shall be applicable to the Securities
of any Series which are redeemable before their final Maturity or
to any sinking fund for the retirement of Securities of a Series
except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION B. Election to Redeem; Notice of
Redemption; Partial Redemptions. The election of the Corporation
to redeem any Securities shall be evidenced by, or pursuant to, a
resolution of the Board of Directors. Notice of redemption to
the Holders of Registered Securities of any Series required to be
redeemed or to be redeemed as a whole or in part at the option of
the Corporation shall be given by giving notice of such
redemption as provided in Section 11.4, at least 30 days and not
more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such Series. Notice of redemption to
the Holders of Unregistered Securities to be redeemed as a whole
or in part, who have filed their names and addresses with the
Trustee, shall be given by mailing notice of such redemption, by
first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee
(and, in the case of any such notice given by the Corporation,
the Trustee shall make such information available to the
Corporation for such purpose). Notice of redemption to all other
Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and in an Authorized Newspaper in London (and, if required
by Section 3.5, in an Authorized Newspaper in Luxembourg), in
each case, once in each of three successive calendar weeks, the
first publication to be not less than thirty nor more than sixty
days prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a Series
designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other
Security of such Series.
The notice of redemption to each such Holder shall
specify the date fixed for redemption, the "CUSIP" number or
numbers for such Securities, the redemption price, the Place or
Places of Payment, that payment will be made upon presentation
and surrender of such Securities, and, in the case of Securities
with Coupons attached thereto, of all Coupons appertaining
thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund,
or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and
that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all of
the Securities of any Series are to be redeemed, the notice of
redemption shall specify the numbers of the Securities of such
Series to be redeemed. In case any Security of a Series is to be
redeemed in part, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such
Series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any Series to
be redeemed at the option of the Corporation shall be given by
the Corporation or, at the Corporation's request, by the Trustee
in the name and at the expense of the Corporation. If such
notice is to be given by the Trustee, the Corporation shall
provide notice of such redemption to the Trustee at least 45 days
prior to the date fixed for redemption (unless a shorter notice
shall be satisfactory to the Trustee). If such notice is given
by the Corporation, the Corporation shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at
least 2 days prior to the date such notice is given to such
Holders, but in any event at least 15 days prior to the date
fixed for redemption (unless a shorter notice shall be
satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not
later than the redemption date specified in the notice of
redemption given as provided in this Section, the Corporation
will have on deposit with the Trustee or with one or more Paying
Agents (or, if the Corporation is acting as its own Paying Agent,
set aside, segregate and hold in trust as provided in Section
3.3) in funds available on such date, an amount of money
sufficient to redeem on the redemption date all the Securities of
such Series so called for redemption at the appropriate
redemption price, together with accrued interest to the date
fixed for redemption. If less than all the Outstanding
Securities of a Series are to be redeemed at the election of the
Corporation, the Corporation will deliver to the Trustee at least
60 days prior to the date fixed for redemption an Officers'
Certificate stating the aggregate principal amount of Securities
to be redeemed.
If less than all the Securities of a Series are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such Series to be
redeemed in whole or in part and the Trustee shall promptly
notify the Corporation in writing of the Securities of such
Series selected for redemption and, in the case of any Securities
of such Series selected for partial redemption, the principal
amount thereof to be redeemed. However, if less than all the
Securities of any Series with differing issue dates, interest
rates and stated maturities are to be redeemed, the Corporation
in its sole discretion shall select the particular Securities to
be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date. Securities
may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such Series or any
multiple thereof. For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the
redemption of Securities of any Series shall relate, in the case
of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been
or is to be redeemed. If any Security selected for partial
redemption is surrendered for conversion after such selection,
the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption.
SECTION C. Payment of Securities Called for
Redemption. If notice of redemption has been given as above
provided, the Securities or portions of Securities specified in
such notice shall become due and payable on the date and at the
place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption,
and on and after said date (unless the Corporation shall default
in the payment of such Securities at the redemption price,
together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption
shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in
Sections 6.1 and 10.4, such Securities shall cease from and after
the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have
no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the
date fixed for redemption. on presentation and surrender of such
Securities at a Place of Payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing
after the date fixed for redemption, said Securities or the
specified portions thereof shall be paid and redeemed by the
Corporation at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption;
provided that, payment of interest becoming due on or prior to
the date fixed for redemption shall be payable in the case of
Securities with Coupons attached thereto, to the Holders of
Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered
Securities registered as such on the relevant record date subject
to the terms and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal shall,
until paid or duly provided for, bear interest from the date
fixed for redemption at the rate of interest or yield to maturity
(in the case of an Original Issue Discount Security) borne by
such Security.
Upon presentation of any Security redeemed in part
only, the Corporation shall execute and the Trustee shall
authenticate and make available for delivery to or on the order
of the Holder thereof, at the expense of the Corporation, a new
Security or Securities, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so
presented.
SECTION D. Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in a
written statement signed by an authorized officer of the
Corporation and delivered to the Trustee at least 30 days prior
to the last date on which notice of redemption may be given as
being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Corporation or (b) an entity
specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Corporation.
SECTION E. Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any Series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of Securities of
any Series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory
sinking fund payment with respect to any Series of Securities in
cash, the Corporation may at its option (a) deliver to the
Trustee Securities of such Series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Corporation or receive credit for
Securities of such Series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid)
by the Corporation and delivered to the Trustee for cancellation
pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this
Section, or (c) receive credit for Securities of such Series (not
previously so credited) redeemed by the Corporation through any
optional redemption provision contained in the terms of such
Series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price
specified in such Securities.
On or before the sixtieth day next preceding each
sinking fund payment date for any Series of Securities, the
Corporation will deliver to the Trustee a written statement
(which need not contain the statements required by Section 11.5)
signed by an authorized officer of the Corporation (a) specifying
the portion of the mandatory sinking fund payment to be satisfied
by payment of cash (except as otherwise specified pursuant to
Section 2.3 for the Securities of such Series), and the portion
to be satisfied by delivery or credit of Securities of such
Series, (b) stating that none of the Securities of such Series
for which credit is sought has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of
Default with respect to such Series have occurred (which have not
been waived or cured) and are continuing, (d) stating whether or
not the Corporation intends to exercise its right to make an
optional sinking fund payment with respect to such Series and, if
so, specifying the amount of such optional sinking fund payment
which the Corporation intends to pay on or before the next
succeeding sinking fund payment date and (e) specifying such
sinking fund payment date. Any Securities of such Series to be
credited and required to be delivered to the Trustee in order for
the Corporation to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.10 to the
Trustee with such written statement. Such written statement
shall be irrevocable and upon its receipt by the Trustee the
Corporation shall become unconditionally obligated to make all
the cash payments or payments therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of
the Corporation, on or before any such sixtieth day, to deliver
such written statement and Securities specified in this
paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of
the Corporation (i) that the mandatory sinking fund payment for
such Series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or
credit Securities of such Series in respect thereof and (ii) that
the Corporation will make no optional sinking fund payment with
respect to such Series as provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed
$100,000 (or the equivalent thereof in any Foreign Currency or
ECU or a lesser sum in Dollars or in any Foreign Currency or ECU
if the Corporation shall so request) with respect to the
Securities of any particular Series, such cash shall be applied
on the next succeeding sinking fund payment date to the
redemption of Securities of such Series at the sinking fund
redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $100,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and
the Corporation makes no such request then it shall be carried
over until a sum in excess of $100,000 (or the equivalent thereof
in any Foreign Currency or ECU), is available. The Trustee shall
select, in the manner provided in Section 12.2 and giving effect
to any exclusions required pursuant to Section 12.4, for
redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said
cash, as nearly as may be possible, and shall (if requested in
writing by the Corporation) inform the Corporation of the serial
numbers of the Securities of such Series (or portions thereof) so
selected. The Trustee, in the name and at the expense of the
Corporation (or the Corporation, if it shall so notify the
Trustee in writing) shall cause notice of redemption of the
Securities of such Series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section
12.3) for the redemption of Securities of such Series at the
option of the Corporation. The amount of any sinking fund
payments not so applied or allocated to the redemption of
Securities of such Series shall be added to the next cash sinking
fund payment for such Series and, together with such payment,
shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the Stated
Maturity date of the Securities of any particular Series (or
earlier, if such Maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such Series
shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of,
and interest on, the Securities of such Series at Maturity.
Unless otherwise specified pursuant to Section 2.3, not
later than the sinking fund payment date, the Corporation shall
have paid to the Trustee in cash or shall otherwise provide in
funds available on such date for the payment of all principal and
interest accrued to the date fixed for redemption on Securities
to be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed
any Securities of a Series with sinking fund moneys or mail or
publish any notice of redemption of Securities for such Series by
operation of the sinking fund during the continuance of a default
in payment of interest on such Securities or of any Event of
Default except that, where the mailing or publication of notice
of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Corporation a sum
sufficient for such redemption. Except as aforesaid, any moneys
in the sinking fund for such Series at the time when any such
default or Event of Default shall occur, and any moneys
thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to
have been collected under Article V and held for the payment of
all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.9 or the default cured on or
before the sixtieth day preceding the sinking fund payment date
in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
SECTION F. Repayment at the Option of the Holders.
Securities of any Series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such Series.
The repayment of any principal amount of Securities
pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section
10.1. shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and
until the Corporation, at its option, shall deliver or surrender
the same to the Trustee with a directive that such Securities be
cancelled.
ARTICLE XIII.
SUBORDINATION
SECTION A. Securities Subordinated to Senior
Indebtedness. The Corporation covenants and agrees that anything
in this Indenture or the Securities of any Series to the contrary
notwithstanding, the indebtedness evidenced by the Securities of
each Series is subordinate and junior in right of payment to all
Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each Series, by his acceptance thereof,
whether upon original issue or upon transfer or assignment
thereof, likewise covenants and agrees to the subordination
herein provided and shall be bound by the provisions hereof.
If the Corporation shall default in the payment of any
principal of or interest on any Senior Indebtedness when the same
becomes due and payable, whether at Maturity or at a date fixed
for prepayment or by declaration of acceleration or otherwise,
then, upon written notice of such default to the Corporation by
the holders of Senior Indebtedness or any trustee therefor,
unless and until such default shall have been cured or waived or
shall have ceased to exist, no direct or indirect payment (in
cash, property, securities, by setoff or otherwise) shall be made
or agreed to be made on account of the principal of, premium, if
any, on, or interest on any of the Securities, or in respect of
any redemption, retirement, purchase or other acquisition of any
of the Securities other than those made in capital stock of the
Corporation (or cash in lieu of fractional shares thereof).
If (a) without the consent of the Corporation a court
having jurisdiction shall enter an order for relief with respect
to the Corporation under the Bankruptcy Code or without the
consent of the Corporation a court having jurisdiction shall
enter a judgment, order or decree adjudging the Corporation a
bankrupt or insolvent, or enter an order for relief for
reorganization, arrangement, adjustment or composition of or in
respect of the Corporation under the Bankruptcy Code or
applicable state insolvency law, or (b) the Corporation shall
institute proceedings for entry of an order for relief with
respect to the Corporation under the Bankruptcy Code or for an
adjudication of insolvency, or shall consent to the institution
of bankruptcy or insolvency proceedings against it, or shall file
a petition seeking, or seek or consent to reorganization,
arrangement, composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to the filing of such
petition or to the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator or similar official
(other than a custodian pursuant to 8 Delaware Code Sec. 226 or any
similar statute under other state laws) of the Corporation or of
substantially all of its property, or the Corporation shall make
a general assignment for the benefit of creditors as recognized
under the Bankruptcy Code, then all Senior Indebtedness
(including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other
property (other than as described below), shall be made to any
Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property
(other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization
or readjustment) which would otherwise (but for these
subordination provisions) be payable or deliverable in respect of
the Securities of any Series shall be paid or delivered directly
to the holders of Senior Indebtedness in accordance with the
priorities then existing among such holders until all Senior
Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in
full. In the event of any such proceeding, after payment in full
of all sums owing with respect to Senior Indebtedness, the Holder
of the Securities, together with the holders of any obligation of
the Corporation ranking on a parity with the Securities, shall be
entitled to be paid from the remaining assets of the Corporation
the amounts at the time due and owing on account of unpaid
principal of and interest, if any, on the Securities and such
other obligations before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Corporation
ranking junior to the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or
distribution of any character, whether in cash, securities or
other property (other than securities of the Corporation or any
other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the
extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities
issued in respect thereof under any such plan of reorganization
or readjustment), shall be received by the Trustee or any Holder
in contravention of any of the terms hereof, such payment- or
distribution or security shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred
to, the holders of the Senior Indebtedness then outstanding in
accordance with the priorities then existing among such holders
for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the Trustee
or any Holder to endorse or assign any such payment, distribution
or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
Nothing contained herein shall impair, as between the
Corporation and the Holders of Securities of each Series, the
obligation of the Corporation to pay to such Holders the
principal of and interest, if any, on such Securities or prevent
the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon
a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Indebtedness to receive cash,
securities or other property otherwise payable or deliverable to
the Holders.
Senior Indebtedness shall not be deemed to have been
paid in full unless the holders thereof shall have received cash,
securities or other property equal to the amount of such Senior
Indebtedness then outstanding. Upon the payment in full of all
Senior Indebtedness, the Holders of Securities of each Series
shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions
applicable to the Senior Indebtedness until the indebtedness
evidenced by the Securities of such Series shall have been paid
in full, and such payments or distributions received by such
Holders, by reason of such subrogation, of cash, securities or
other property which otherwise would be paid or distributed to
the holders of Senior Indebtedness, shall as between the
Corporation and its creditors other than the holders of Senior
Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Corporation on account of
Senior Indebtedness, and not on account of the Securities of such
Series.
The provisions of this Section 13.1 shall not impair
any rights, interests, remedies or powers of any secured creditor
of the Corporation in respect of any security interest the
creation of which is not prohibited by the provisions of this
Indenture.
The securing of any obligations of the Corporation,
otherwise ranking on a parity with the Securities or ranking
junior to the Securities, shall not be deemed to prevent such
obligations from constituting, respectively, obligations ranking
on a parity with the Securities or ranking junior to the
Securities.
SECTION X. Xxxxxxxx on Certificate of Liquidating
Agent; Further Evidence as to Ownership of Senior Indebtedness.
Upon any payment or distribution of assets of the Corporation,
the Trustee and the Holders shall be entitled to rely upon an
order or decree issued by any court of competent jurisdiction in
which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for
the benefit of creditors or other Person making such payment or
distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Corporation, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article
XIII. In the absence of any such bankruptcy trustee, receiver,
assignee or other Person, the Trustee shall be entitled to rely
upon a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on
behalf of such holder) as evidence that such Person is a holder
of Senior Indebtedness (or is such a trustee or representative).
If 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
distributions pursuant to this Article XIII, 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 Article XIII, 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.
SECTION C. Payment Permitted If No Default.
Nothing contained in this Article XIII or elsewhere in this
Indenture, or in any of the Securities, shall prevent (a) the
Corporation at any time, except during the pendency of any
default in the payment of any principal of or interest on any
Senior Indebtedness as described in Section 13.1 or of any of the
events described in clauses (a) and (b) of Section 13.1, from
making payments of the principal of or interest, if any, on the
Securities, or (b) the application by the Trustee or any Paying
Agent of any moneys deposited with it hereunder to payments of
the principal of or interest, if any, on the Securities, if, at
the time of such deposit, the Trustee or such paying agent, as
the case may be, did not have the written notice provided for in
Section 13.4 of any event prohibiting the making of such deposit,
or if, at the time of such deposit (whether or not in trust) by
the Corporation with the Trustee or Paying Agent (other than the
Corporation) such payment would not have been prohibited by the
provisions of this Article XIII, and the Trustee or any Paying
Agent shall not be affected by any notice to the contrary
received by it on or after such date.
SECTION D. Trustee Not Charged with Knowledge of
Prohibition. Anything in this Article XIII or elsewhere in this
Indenture to the contrary notwithstanding, the Trustee shall not
at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of money to
or by the Trustee and shall be entitled to assume conclusively
that no such facts exist and that no event specified in Section
13.1 has happened, until the Trustee shall have received an
Officers' Certificate to that effect or notice in writing to that
effect signed by or on behalf of the holder or holders, or their
representatives, of Senior Indebtedness who shall have been
certified by the Corporation or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or
holders or representatives or from any trustee under any
indenture pursuant to which such Senior Indebtedness shall be
outstanding; provided, however, that, if the Trustee shall not
have received the Officers' Certificate or notice provided for in
this Section 13.4 prior to the third Business Day preceding the
date upon which by the terms hereof any money becomes payable
(including without limitation, the payment of either the
principal of or interest, if any, on any Security), or in the
event of the execution of an instrument pursuant to Section 10.1
acknowledging satisfaction and discharge of this Indenture, then
if prior to the third Business Day preceding the date of such
execution, the Trustee or any Paying Agent shall not have
received with respect to such money the officers Certificate or
notice provided for in this Section 13.4, then, anything herein
to the contrary notwithstanding, the Trustee or such Paying Agent
shall have full power and authority to receive such money and
apply the same to the purpose for which it was received and shall
not be affected by any notice to the contrary which may be
received by it on or after such date. The Corporation shall give
prompt written notice to the Trustee and to the Paying Agent of
any facts which would prohibit the payment of money to or by the
Trustee or any Paying Agent and the Trustee shall not be charged
with knowledge of the curing of any default or the elimination of
any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an
Officers' Certificate to such effect.
SECTION E. Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Indebtedness as
provided in this Article XIII and appoints the Trustee its
attorney-in-fact for any and all such purposes.
SECTION F. Rights of Trustee as Holder of Senior
Indebtedness. The Trustee shall be entitled to all the rights
set forth in this Article XIII with respect to any Senior
Indebtedness which may at the time be held by it, to the same
extent as any other holder of Senior Indebtedness and nothing in
this Indenture shall deprive the Trustee of any of its rights as
such holder, Nothing in this Article XIII shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 6.7.
SECTION G. Article Applicable to Paying Agents. In
case at any time any Paying Agent other than the Trustee shall
have been appointed by the Corporation and be then acting
hereunder, the term "Trustee" as used in this Article XIII 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 the
Paying Agent were named in this Article XIII in addition to or in
place of the Trustee; provided, however, that Sections 13.4 and
13.6 shall not apply to the Corporation if it acts as paying
agent.
SECTION H. Subordination Rights Not Impaired by
Acts or Omissions of the Corporation or Holders of Senior
Indebtedness. No right of any present or future holders of any
Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Corporation or by any act or
failure to act, in good faith, by any such holder, or by any
noncompliance by the Corporation with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness may, at any time or from time to
time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or
renew or alter, any such Senior Indebtedness, or amend or
supplement any instrument pursuant to which any such Senior
Indebtedness is issued or by which it may be secured, or release
any security therefor, or exercise or refrain from exercising any
other of their rights under the Senior Indebtedness, including,
without limitation, the waiver of default thereunder, all without
notice to or assent from the Holders of the Securities or the
Trustee and without affecting the obligations of the Corporation,
the Trustee or the Holders of Securities under this Article XIII.
SECTION I. Trustee Not Fiduciary for Holders of
Senior Indebtedness. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of the Senior Indebtedness, and
shall not be liable to any such holders if it shall mistakenly
pay over or distribute money or assets to Securityholders or the
Corporation. With respect to the 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 XIII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this
Indenture against the Trustee.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereto affixed and attested, all as of the day and
year first above written.
USG CORPORATION
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
[CORPORATE SEAL]
,
as Trustee
By:
Name:
Title:
ATTEST:
By:
Name:
Title:
[CORPORATE SEAL]
