================================================================================
Dow Corning Corporation
and
[_______________________________],
Trustee
_______________________
INDENTURE
Dated as of ______________, 1999
_______________________
DEBT SECURITIES
================================================================================
[______________________________]
===============================
Debt Securities
Cross Reference Sheet*
This Cross Reference Sheet shows the location in the
Indenture of the provisions inserted pursuant to Sections 310 - 318(a),
inclusive, of the Trust Indenture Act of 1939, as amended.
Trust Indenture Act Sections of Indenture
------------------- ---------------------
(S) 310(a)(1) ............................. 9.08
(a)(2) ............................. 9.08
(a)(3) ............................. Inapplicable
(a)(4) ............................. Inapplicable
(a)(5) ............................. 9.08
(b) ............................. 9.07 and 9.09
(c) ............................. Inapplicable
(S) 311(a) ............................. 9.12
(b) ............................. 9.12
(c) ............................. Inapplicable
(S) 312(a) ............................. 7.01 and 7.02
(b) ............................. 7.02
(c) ............................. 7.02
(S) 313(a) ............................. 7.03
(b) ............................. 7.03
(c) ............................. 7.03
(d) ............................. 7.03
(S) 314(a) ............................. 7.04
(a)(4) ............................. 1.01 and 6.07
(b) ............................. Inapplicable
(c)(1) ............................. 13.05
(c)(2) ............................. 13.05
(c)(3) ............................. Inapplicable
(d) ............................. Inapplicable
(e) ............................. 13.05
(f) ............................. Inapplicable
(S) 315(a) ............................. 9.01
(b) ............................. 8.08
(c) ............................. 9.01
(d) ............................. 9.01
(e) ............................. 8.07
(S) 316(a) ............................. 1.01
(a)(1)(A)............................. 8.01 and 8.06
(a)(1)(B)............................. 8.01
(a)(2) ............................. Inapplicable
(b) ............................. 8.09
(c) ............................. 13.11
(S) 317(a)(1) ............................. 8.02
(a)(2) ............................. 8.02
(b) ............................. 6.03
(S) 318(a) ............................. 13.08
-----------------
* The Cross Reference Sheet is not part of the Indenture.
Table of Contents*
Page
----
Recitals.................................................................... 1
Article I. Definitions.................................................. 1
Section 1.01. Certain Terms Defined.............................. 1
Act......................................................... 1
Affiliate................................................... 2
Authenticating Agent........................................ 2
Board of Directors.......................................... 2
Board Resolution............................................ 2
Business Day................................................ 2
Capital Lease............................................... 2
Capital Lease Obligation.................................... 2
Commission.................................................. 2
Common Stock................................................ 2
Company..................................................... 3
Company Request or Company Order............................ 3
Consolidated Net Tangible Assets............................ 3
Corporate Trust Office...................................... 3
Covenant Defeasance......................................... 3
Debt........................................................ 3
Default..................................................... 3
Defaulted Interest.......................................... 3
Defeasance.................................................. 4
Defeasible Series........................................... 4
Depositary.................................................. 4
Domestic Subsidiary......................................... 4
Event of Default............................................ 4
Exchange Act................................................ 4
Funded Debt................................................. 4
GAAP........................................................ 4
Global Security............................................. 5
Holder...................................................... 5
Indebtedness................................................ 5
Indenture................................................... 5
Interest.................................................... 5
Interest Payment Date....................................... 6
Material Adverse Effect..................................... 6
---------------
*The Table of Contents is not part of the Indenture.
Maturity.................................................... 6
Notice of Default........................................... 6
Officer's Certificate....................................... 6
Opinion of Counsel.......................................... 6
Original Issue Discount Security............................ 6
Outstanding................................................. 6
Paying Agent................................................ 7
Person...................................................... 7
Place of Payment............................................ 7
Predecessor Security........................................ 7
Principal Domestic Manufacturing Property................... 8
Redemption Date............................................. 8
Redemption Price............................................ 8
Regular Record Date......................................... 8
Responsible Officer......................................... 8
Securities.................................................. 9
Security Register and Security Registrar.................... 9
Special Record Date......................................... 9
Stated Maturity............................................. 9
Subsidiary.................................................. 9
Trust Indenture Act......................................... 9
Trustee..................................................... 10
U.S. Government Obligation.................................. 10
Vice President.............................................. 10
Article II. The Securities.............................................. 11
Section 2.01. Designation and Amount of Securities.................. 11
Section 2.02. Form of Securities and Trustee's Certificate
of Authentication..................................... 12
Section 2.03. Date and Denominations................................ 13
Section 2.04. Execution, Authentication and Delivery of Securities.. 13
Section 2.05. Registration of Transfer and Exchange................. 15
Section 2.06. Temporary Securities.................................. 16
Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities..... 16
Section 2.08. Cancellation of Surrendered Securities................ 17
Section 2.09. Payment of Interest; Interest Rights Preserved........ 17
Section 2.10. Persons Deemed Owners................................. 19
Section 2.11. Computation of Interest............................... 19
Article III. Redemption of Securities.................................... 19
Section 3.01. Applicability of Article.............................. 19
Section 3.02. Election to Redeem; Notice to Trustee................. 19
Section 3.03. Deposit of Redemption Price........................... 20
---------------
*The Table of Contents is not part of the Indenture.
(ii)
Section 3.04. Securities Payable on Redemption Date................. 20
Section 3.05. Securities Redeemed in Part........................... 21
Article IV. Sinking Funds................................................ 21
Section 4.01. Applicability of Article.............................. 21
Section 4.02. Satisfaction of Sinking Fund Payments
With Securities....................................... 21
Section 4.03. Redemption of Securities for Sinking Fund............. 21
Article V. Defeasance and Covenant Defeasance........................... 22
Section 5.01. Company's Option to Effect Defeasance or
Covenant Defeasance................................... 22
Section 5.02. Defeasance and Discharge.............................. 22
Section 5.03. Covenant Defeasance................................... 22
Section 5.04. Conditions to Defeasance or Covenant Defeasance....... 23
Section 5.05. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions... 25
Section 5.06. Reinstatement......................................... 25
Article VI. Particular Covenants of the Company.......................... 26
Section 6.01. Payment of Principal, Premium and Interest
on Securities......................................... 26
Section 6.02. Maintenance of Office or Agency....................... 26
Section 6.03. Money for Securities Payments to be Held in Trust..... 26
Section 6.04. Payment of Taxes and Other Claims..................... 27
Section 6.05. Maintenance of Properties............................. 28
Section 6.06. Existence............................................. 28
Section 6.07. Compliance with Laws.................................. 28
Section 6.08. Statement by Officers as to Default................... 28
Section 6.09. Financial Reporting................................... 28
Section 6.10. Waiver of Certain Covenants........................... 29
Article VII. Securities Holders' Lists And Reports By The Company
And The Trustee.............................................. 29
Section 7.01. Company to Furnish Trustee Names and Addresses
of Holders............................................ 29
Section 7.02. Preservation of Information; Communication
to Holders............................................ 29
Section 7.03. Reports by Trustee.................................... 30
Section 7.04. Reports by Company.................................... 30
Article VIII. Default...................................................... 30
Section 8.01. Event of Default...................................... 30
Section 8.02. Covenant of Company to Pay to Trustee Whole Amount
Due on Securities on Default in Payment of
Interest or Principal; Suits for Enforcement
by Trustee............................................ 33
Section 8.03. Application of Money Collected by Trustee............. 34
---------------
*The Table of Contents is not part of the Indenture.
(iii)
Section 8.04. Limitation on Suits by Holders of Securities.......... 34
Section 8.05. Rights and Remedies Cumulative; Delay or Omission
in Exercise of Rights not a Waiver of Event
of Default............................................ 35
Section 8.06. Rights of Holders of Majority in Principal Amount of
Outstanding Securities to Direct Trustee.............. 35
Section 8.07. Requirement of an Undertaking to Pay Costs
in Certain Suits Under the Indenture or
Against the Trustee................................... 35
Section 8.08. Notice of Defaults.................................... 35
Section 8.09. Unconditional Right of Holders to Receive
Principal, Premium, and Interest...................... 36
Section 8.10. Restoration of Rights and Remedies.................... 36
Section 8.11. Trustee May File Proofs of Claims..................... 36
Article IX. Concerning the Trustee....................................... 37
Section 9.01. Certain Duties and Responsibilities................... 37
Section 9.02. Certain Rights of Trustee............................. 37
Section 9.03. Not Responsible for Recitals or Issuance
of Securities......................................... 38
Section 9.04. May Hold Securities................................... 38
Section 9.05. Money Held in Trust................................... 38
Section 9.06. Compensation and Reimbursement........................ 38
Section 9.07. Disqualification; Conflicting Interests............... 39
Section 9.08. Corporate Trustee Required Eligibility................ 38
Section 9.09. Resignation and Removal; Appointment of Successor..... 39
Section 9.10. Acceptance of Appointment by Successor................ 40
Section 9.11. Merger, Conversion, Consolidation, or Succession
to Business........................................... 41
Section 9.12. Preferential Collection of Claims Against Company..... 41
Section 9.13. Appointment of Authenticating Agent................... 41
Article X. Supplemental Indentures And Certain Actions.................. 43
Section 10.01. Purposes for Which Supplemental Indentures
May Be Entered Into Without Consent of Holders........ 43
Section 10.02. Modification of Indenture With Consent of Holders
of at Least a Majority in Principal Amount
of Outstanding Securities............................. 44
Section 10.03. Execution of Supplemental Indentures.................. 45
Section 10.04. Effect of Supplemental Indentures..................... 45
Section 10.05. Conformity with Trust Indenture Act................... 45
Section 10.06. Reference in Securities to Supplemental Indentures.... 45
Article XI. Consolidation, Merger, Sale, or Transfer..................... 46
Section 11.01. Consolidations and Mergers of Company and
Sales Permitted Only on Certain Terms................. 46
---------------
*The Table of Contents is not part of the Indenture.
(iv)
Article XII. Satisfaction and Discharge of Indenture..................... 46
Section 12.01. Satisfaction and Discharge of Indenture.............. 46
Section 12.02. Application of Trust Money........................... 47
Article XIII. Miscellaneous Provisions.................................... 47
Section 13.01. Successors and Assigns of Company Bound by
Indenture............................................ 47
Section 13.02. Service of Required Notice to Trustee and Company.... 47
Section 13.03. Service of Required Notice to Holders; Waiver........ 47
Section 13.04. Indenture and Securities to be Construed in
Accordance with the Laws of the State of
New York............................................. 48
Section 13.05. Compliance Certificates and Opinions................. 48
Section 13.06. Form of Documents Delivered to Trustee............... 48
Section 13.07. Payments Due on Non-Business Days.................... 48
Section 13.08. Provisions Required by Trust Indenture Act
to Control........................................... 49
Section 13.09. Invalidity of Particular Provisions.................. 49
Section 13.10. Indenture May be Executed In Counterparts............ 49
Section 13.11. Acts of Holders; Record Dates........................ 49
Section 13.12. Effect of Headings and Table of Contents............. 51
Section 13.13. Benefits of Indenture................................ 52
---------------
*The Table of Contents is not part of the Indenture.
(v)
Indenture, dated as of _________ __, 1999, between Dow Corning
Corporation, a corporation duly organized and existing under the laws of the
State of Michigan (the "Company"), and [______], a [____________], organized and
existing under the laws of the United States of America, as Trustee (the
"Trustee").
Recitals
A. The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures,
notes, and other evidences of indebtedness (the "Securities"), to be issued in
one or more series as in this Indenture provided.
B. All acts and things necessary to make the Securities, when the
Securities have been executed by the Company and authenticated by the Trustee
and delivered as provided in this Indenture, the valid, binding, and legal
obligations of the Company and to constitute these presents a valid indenture
and agreement according to its terms, have been done and performed, and the
execution and delivery by the Company of this Indenture and the issue hereunder
of the Securities have in all respects been duly authorized; and the Company, in
the exercise of legal right and power in it vested, is executing and delivering
this Indenture and proposes to make, execute, issue, and deliver the Securities.
Now, Therefore, this Indenture Witnesseth:
In order to declare the terms and conditions upon which the Securities
are authenticated, issued, and delivered, and in consideration of the premises
and of the purchase and acceptance 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 1.01. Certain Terms Defined.
(a) The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context of this Indenture otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto have
the respective meanings specified in this Section 1.01. All other terms used in
this Indenture that are defined in the Trust Indenture Act, either directly or
by reference therein (except as herein otherwise expressly provided or unless
the context of this Indenture otherwise requires), have the respective meanings
assigned to such terms in the Trust Indenture Act as in force at the date of
this Indenture as originally executed.
Act:
----
The term "Act", when used with respect to any Holder, has the meaning
set forth in Section 13.11.
1
Affiliate:
----------
The term "Affiliate" means, with respect to a particular Person, any
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. For purposes of this definition,
control of a Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative of the foregoing.
Authenticating Agent:
---------------------
The term "Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 9.13 to act on behalf of the Trustee to authenticate
Securities of one or more series.
Board of Directors:
-------------------
The term "Board of Directors" means the Board of Directors of the
Company or a duly authorized committee of such Board.
Board Resolution:
-----------------
The term "Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
Business Day:
-------------
The term "Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday, and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or required by law or executive order to close.
Commission:
-----------
The term "Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
Common Stock:
-------------
The term "Common Stock" means the common stock of the Company.
2
Company:
--------
The term "Company" means Dow Corning Corporation, a Michigan
corporation, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" will mean such
successor Person.
Company Request or Company Order:
---------------------------------
The term "Company Request" or "Company Order" means a written request
or order signed in the name of the Company by the Chairman of the Board of
Directors, any Vice Chairman of the Board of Directors, the President, a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary, or an Assistant
Secretary of the Company, and delivered to the Trustee.
Consolidated Net Tangible Assets:
--------------------------------
The term "Consolidated Net Tangible Assets" means the aggregate amount
of assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof
constituting Funded Debt by reason of being renewable or extendible) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other intangibles, all as set forth on the most recent consolidated
balance sheet of the Company and its consolidated Subsidiaries and computed in
accordance with GAAP.
Corporate Trust Office:
-----------------------
The term "Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business is principally
administered, which on the date hereof is [_______________________].
Covenant Defeasance:
--------------------
The term "Covenant Defeasance" has the meaning set forth in Section
5.03.
Debt:
----
The term "Debt" means any indebtedness for money borrowed evidenced by
notes, bonds, debentures or other similar evidences of indebtedness.
Default:
--------
The term "Default" means any event which, with notice or passage of
time or both, would constitute an Event of Default.
3
Defaulted Interest:
-------------------
The term "Defaulted Interest" has the meaning set forth in Section
2.09.
Defeasance:
-----------
The term "Defeasance" has the meaning set forth in Section 5.02.
Defeasible Series:
------------------
The term "Defeasible Series" has the meaning set forth in Section
5.01.
Depositary:
-----------
The term "Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities in accordance with Section 2.01.
Domestic Subsidiary:
-------------------
The term "Domestic Subsidiary" means any Subsidiary of the Company (i)
substantially all of the property of which is located, and substantially all of
the business of which is carried on, within the United States of America
(excluding its territories and possessions and the Commonwealth of Puerto Rico),
and (ii) which (A) owns or operates one or more Principal Domestic Manufacturing
Properties or (B) owns capital stock of another Domestic Subsidiary; except that
a Subsidiary which is primarily engaged in the business of a finance company or
insurance company shall not constitute a Domestic Subsidiary.
Event of Default:
-----------------
The term "Event of Default" has the meaning set forth in Section
8.01(a).
Exchange Act:
-------------
The term "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, as the same may be in effect from time to time.
Funded Debt:
-----------
The term "Funded Debt" means all Debt having a maturity of more than
12 months from the date as of which the amount thereof is to be determined or
having a maturity of less than 12 months but by its terms being renewable or
extendible beyond 12 months from such date at the option of the borrower.
4
GAAP:
-----
The term "GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and The American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by any
successor entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the date
of determination.
Global Security:
----------------
The term "Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and delivered to, and
registered in the name of, the Depositary for such Securities or a nominee
thereof.
Holder:
-------
The term "Holder" means a person in whose name a particular Security
is registered in the Security Register.
Indebtedness:
-------------
The term "Indebtedness" means, as applied to any Person, without
duplication, (a) indebtedness for borrowed money, all indebtedness evidenced by
notes, bonds, debentures or other evidences of indebtedness, and all
indebtedness under purchase money mortgages or other purchase money liens or
conditional sales or similar title retention agreements, in each case where such
indebtedness has been created, incurred, assumed or guaranteed by such Person or
where such Person is otherwise liable therefor, and (b) indebtedness for
borrowed money secured by any mortgage, pledge or other lien or encumbrance upon
property owned by such Person even though such Person has not assumed or become
liable for the payment of such indebtedness; provided, however, that
-------- -------
indebtedness of the type referred to in clause (b) above shall be included
within the definition of "Indebtedness" only to the extent of the lesser of: (i)
the amount of the underlying indebtedness referred to in clause (b) above and
(ii) the aggregate value (as determined in good faith by the Board of Directors)
of the security for such indebtedness.
Indenture:
----------
The term "Indenture" means this Indenture, as this Indenture may be
amended, supplemented, or otherwise modified from time to time, including, for
all purposes of this Indenture and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" will also include the terms of particular series of Securities
established in accordance with Section 2.01.
5
Interest:
---------
The term "interest," (i) when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest which accrues from and after and is payable after Maturity and (ii)
when used with respect to any Security, means the amount of all interest
accruing on such Security, including any default interest and any interest that
would have accrued after any Event of Default but for the occurrence of such
Event of Default, whether or not a claim for such interest would be otherwise
allowable under applicable law.
Interest Payment Date:
----------------------
The term "Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
Material Adverse Effect:
------------------------
The term "Material Adverse Effect" means a material adverse effect on
the business, assets, financial condition or results of operations of the
Company (taken together with its Subsidiaries as a whole).
Maturity:
---------
The term "Maturity," when used with respect to any Security, means the
date on which the principal of that Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, or otherwise.
Notice of Default:
------------------
The term "Notice of Default" means a written notice of the kind set
forth in Section 8.01(a)(iv).
Officer's Certificate:
----------------------
The term "Officer's Certificate" means a certificate executed on
behalf of the Company by a Responsible Officer, and delivered to the Trustee.
Opinion of Counsel:
-------------------
The term "Opinion of Counsel" means an opinion in writing signed by
legal counsel, who, subject to any express provisions hereof, may be an employee
of or counsel for the Company or any Subsidiary, reasonably acceptable to the
Trustee.
6
Original Issue Discount Security:
---------------------------------
The term "Original Issue Discount Security" means any Security which
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 8.01(b).
Outstanding:
------------
The term "Outstanding" means, when used with reference to Securities
as of a particular time, all Securities theretofore issued by the Company and
authenticated and delivered by the Trustee under this Indenture, except (a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation, (b) Securities in respect of which money in the necessary amount
for the payment or redemption of which has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company is acting as its own Paying
Agent) for the Holders of such Securities; provided that, if such Securities are
--------
to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made, and
(c) Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; provided,
--------
however, that in determining whether the Holders of the requisite principal
-------
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent, or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that will be deemed to
be Outstanding will be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof to such date pursuant to Section 8.01(b), (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units will be
the U.S. dollar equivalent, determined in the manner contemplated by Section
2.01 on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in clause (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor will be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee will be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, or waiver, only Securities which the Trustee knows to be so
owned will be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
Paying Agent:
-------------
The term "Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
7
Person:
-------
The term "Person" means any individual, partnership, corporation,
limited liability company, limited liability partnership, joint stock company,
business trust, trust, unincorporated association, joint venture, or other
entity, or government or political subdivision or agency thereof.
Place of Payment:
-----------------
The term "Place of Payment," when used with respect to the Securities
of any series, means the place or places for the payment of the principal of and
any premium and interest on the Securities of that series established in
accordance with Section 2.01.
Predecessor Security:
---------------------
The term "Predecessor Security," when used with respect to any
particular Security, means every previous Security evidencing all or a portion
of the same debt as that evidenced by such Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section 2.07 in
exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will
be deemed to evidence the same debt as the mutilated, destroyed, lost, or stolen
Security.
Principal Domestic Manufacturing Property:
-----------------------------------------
The term "Principal Domestic Manufacturing Property" means any
building, structure or other facility, together with the land upon which it is
erected and fixtures comprising a part thereof, used primarily for manufacturing
or warehousing and located in the United States of America, owned or leased by
the Company or any Domestic Subsidiary, the gross book value (without deduction
for any depreciation reserves) of which on the date as of which the
determination is being made exceeds 1.5% of Consolidated Net Tangible Assets,
other than any such building, structure or other facility or portion thereof or
any land or fixture (i) which is financed by obligations issued by a State,
Territory, or a possession of the United States, or any political subdivision of
any of the foregoing, or the District of Columbia, the interest on which is
excludable from gross income of the holder thereof pursuant to the provisions of
Section 103(a)(1) of the Internal Revenue Code of 1986, as amended or as
hereafter amended (or any successor of such provision), as in effect at the time
of issuance of such obligations, or (ii) which, in the opinion of the Board of
Directors of the Company is not of material importance to the total business
conducted by the Company and its Subsidiaries as an entirety.
Redemption Date:
----------------
The term "Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
8
Redemption Price:
-----------------
The term "Redemption Price," when used with respect to any Security to
be redeemed, means the price (including premium, if any) at which it is to be
redeemed pursuant to this Indenture.
Regular Record Date:
--------------------
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date established
for that purpose in accordance with Section 2.01.
Responsible Officer:
--------------------
The term "Responsible Officer," when used (a) with respect to the
Company, means the Chairman, any Vice Chairman, Chief Executive Officer, the
President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary, or an Assistant Secretary of the Company and (b) with respect to the
Trustee, means the Chairman or any Vice Chairman of the Board of Directors (if
an officer), the Chairman or any Vice Chairman of the Executive Committee of the
Board of Directors (if an officer), the Chief Executive Officer, the President,
any Vice President, any Second or Assistant Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer
or Assistant 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 are such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
Securities:
----------
The term "Securities" has the meaning set forth in the first recital
of this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
Security Register and Security Registrar:
-----------------------------------------
The terms "Security Register" and "Security Registrar" have the
respective meanings set forth in Section 2.05.
Special Record Date:
--------------------
The term "Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 2.09.
9
Stated Maturity:
----------------
The term "Stated Maturity," when used with respect to any Security,
any installment of interest thereon, or any other amount payable under this
Indenture or the Securities, means the date specified in this Indenture or such
Security as the regularly scheduled date on which the principal of such
Security, such installment of interest, or such other amount, is due and
payable.
Subsidiary:
-----------
The term "Subsidiary" means, as applied with respect to any Person,
any corporation, partnership, or other business entity of which, in the case of
a corporation, more than 50% of the issued and outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the
occurrence of any contingency), or, in the case of any partnership or other
legal entity, more than 50% of the ordinary voting equity capital interests, is
at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries, or by one or more of such
Person's other Subsidiaries.
Trust Indenture Act:
--------------------
The term "Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
-------- -------
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee:
--------
The term "Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" will 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 will mean each Trustee with respect to
Securities of that series.
U.S. Government Obligation:
---------------------------
The term "U.S. Government Obligation" means (a) any security that is
(i) a direct obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof and (b) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the
10
Securities Act of 1933, as amended) as custodian with respect to any U.S.
Government Obligation specified in clause (a), which U.S. Government Obligation
is held by such custodian for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or interest on
any such U.S. Government Obligation, provided that (except as required by law)
--------
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.
Vice President:
---------------
The term "Vice President," when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
(b) The words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture. The words "herein", "hereof," and
"hereunder" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section, or other subdivision. Certain terms
used principally in Articles V, VI, and IX are defined in those Articles. Terms
in the singular include the plural and terms in the plural include the singular.
Article II. The Securities.
Section 2.01. Designation and Amount of Securities.
(a) The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series. There
will be established in or pursuant to a Board Resolution and, subject to Section
2.04, set forth or determined in the manner provided in an Officer's
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series: (i) the title of the Securities of
the series (which will distinguish the Securities of the series from Securities
of any other series); (ii) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in the exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 10.06 and except for any
Securities which, pursuant to Section 2.04, are deemed never to have been
authenticated and delivered hereunder); (iii) the Person to whom any interest on
a Security of the series will be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest; (iv) the date or dates
on which the principal of the Securities of the series is payable; (v) the rate
or rates at which the Securities of the series will bear interest, if any, the
date or dates from which such interest will accrue, the Interest Payment Dates
on which any such interest will be payable, and the Regular Record Date for any
interest payable on any Interest Payment Date; (vi) the place or places where
the principal of and any premium and interest on Securities of the series will
be
11
payable; (vii) the period or periods within which, the price or prices at which,
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company; (viii) the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of
a Holder thereof and the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of the series will be
redeemed or purchased, in whole or in part, pursuant to such obligation; (ix) if
other than denominations of $1,000 and integral multiples thereof, the
denominations in which Securities of the series will be issuable; (x) the
currency, currencies, or currency units in which payment of the principal of and
any premium and interest on any Securities of the series will be payable if
other than the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United States of
America for purposes of the definition of "Outstanding" in Section 1.01; (xi) if
the amount of payments of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index, based
upon a formula, or in some other manner, the manner in which such amounts will
be determined; (xii) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies, or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is
made will be payable, and the periods within which and the terms and conditions
upon which such election is to be made; (xiii) if other than the principal
amount thereof, the portion of the principal amount of Securities of the series
which will be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 8.01(b); (xiv) if applicable, that the Securities of the
series will be subject to either or both of Defeasance or Covenant Defeasance as
provided in Article V, provided that no series of Securities that is convertible
into Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01(b)(xvii) will be
subject to Defeasance pursuant to Section 5.02; (xv) if and as applicable, that
the Securities of the series will be issuable in whole or in part in the form of
one or more Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances other than
those set forth in Section 2.05 in which any such Global Security may be
transferred to, and registered and exchanged for Securities registered in the
name of, a Person other than the Depositary for such Global Security or a
nominee thereof and in which any such transfer may be registered; (xvi) the
terms and conditions, if any, pursuant to which the Securities are convertible
into Common Stock; (xvii) the terms and conditions, if any, pursuant to which
the Securities are convertible into or exchangeable for any other securities,
including (without limitation) securities of Persons other than the Company;
(xviii) if and as applicable, that the Securities of the series will be
subordinate and subject in right of payment to the prior payment of other
Indebtedness; and (xix) any other terms of, or provisions, covenants, rights or
other matters applicable to, the series (which terms, provisions, covenants,
rights or other matters will not be inconsistent with the provisions of this
Indenture, except as permitted by Section 10.01(e)).
(c) All Securities of any one series will be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to below and (subject to Section 2.04) set
forth or determined in the manner provided in the Officer's Certificate referred
to above or in any such indenture supplemental hereto.
12
(d) If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action will be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee concurrently with or prior to the delivery
of the Officer's Certificate setting forth the terms of the series.
Section 2.02. Form of Securities and Trustee's Certificate of Authentication.
(a) The Securities of each series will be in such form as may be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, and may have such letters, numbers, or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action will be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee concurrently
with or prior to the delivery of the Company Order contemplated by Section 2.04
for the authentication and delivery of such Securities.
(b) The definitive Securities will be printed, lithographed, or
engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) The Trustee's certificate of authentication will be in
substantially the following form:
[Form of Trustee's Certificate Of Authentication for Securities]
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[______________],
as Trustee
By: ______________________________
Authorized Officer
(d) Every Global Security authenticated and delivered hereunder
will bear a legend in substantially the following form:
13
[Form of Legend for Global Securities]
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof, and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, this Security will be a Global Security subject to the
foregoing, except in such limited circumstances.
Section 2.03. Date and Denominations.
Each Security will be dated the date of its authentication.
The Securities of each series will be issuable only in registered form without
coupons in such denominations as may be specified in accordance with Section
2.01. In the absence of any such specified denomination with respect to the
Securities of any series, the Securities of such series will be issuable in
denominations of $1,000 and integral multiples thereof.
Section 2.04. Execution, Authentication and Delivery of Securities.
(a) The Securities will be executed on behalf of the Company by
the Chairman or any Vice Chairman of the Board of Directors, the Chief Executive
Officer, the President, or any Vice President of the Company and attested by the
Treasurer, the Secretary, any Assistant Treasurer, or any Assistant Secretary of
the Company under its corporate seal. The signature of any of these officers on
the Securities may be manual or facsimile. The seal of the Company may be in
the form of a facsimile thereof and may be impressed, affixed, imprinted, or
otherwise reproduced on the Securities.
(b) Only such Securities bearing the Trustee's certificate of
authentication, signed manually by the Trustee, will be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such execution of
the certificate of authentication by the Trustee upon any Securities executed by
the Company will be conclusive evidence that the Securities so authenticated
have been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 2.08, for all
purposes of this Indenture such Security will be deemed never to have been
authenticated and delivered hereunder and will never be entitled to the benefits
of this Indenture.
(c) Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company will bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
(d) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the
14
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order will authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 2.01 and 2.02, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee will be entitled to receive, and
(subject to Section 9.01) will be fully protected in relying upon, an Opinion of
Counsel stating (i) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such form has
been established in conformity with the provisions of this Indenture, (ii) if
the terms of such Securities have been established by or pursuant to a Board
Resolution as permitted by Section 2.01, that such terms have been established
in conformity with the provisions of this Indenture, and (iii) that such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, or other
laws relating to or affecting creditors' rights and by general principles of
equity.
(e) Notwithstanding the provisions of Sections 2.01 and 2.04(d),
if all Securities of a series are not to be originally issued at one time, it
will not be necessary to deliver the Officer's Certificate otherwise required
pursuant to Section 2.01 or the Company Order and Opinion of Counsel otherwise
required pursuant to Section 2.04(d) at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
Section 2.05. Registration of Transfer and Exchange.
(a) The Company will cause to be kept at the Corporate Trust
Office a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
(b) Upon surrender for registration of transfer of any Security
of any series at the office or agency in a Place of Payment for that series, the
Company will execute, and the Trustee will authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
(c) At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company will execute,
15
and the Trustee will authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
(d) Every Security presented or surrendered for registration of
transfer or exchange will (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument or instruments of transfer,
in form reasonably satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing. No
service charge will be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 2.06, 3.05, or 10.06 not involving any transfer. The
Company will not be required (i) to issue, register the transfer of, or exchange
Securities of any series during a period beginning at the opening of business 15
calendar days before the mailing of a notice of redemption of Securities of that
series selected for redemption under Section 3.02(c) and ending at the close of
business on the day of such mailing or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except, in
the case of any Securities to be redeemed in part, the portion thereof not being
redeemed.
(e) All Securities issued upon any registration of transfer or
exchange of Securities will be valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(f) Notwithstanding any other provision in this Indenture,
no Global Security may be transferred to, or registered or exchanged for
Securities registered in the name of, any Person other than the Depositary for
such Global Security or any nominee thereof, and no such transfer may be
registered, unless (i) such Depositary (A) notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
ceases to be a clearing agency registered under the Exchange Act, (ii) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so transferable, registrable, and exchangeable, and such
transfers shall be registrable, (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities evidenced by such
Global Security, or (iv) there shall exist such other circumstances, if any, as
have been specified for this purpose in accordance with Section 2.01.
Notwithstanding any other provision in this Indenture, a Global Security to
which the restriction set forth in the preceding sentence shall have ceased to
apply may be transferred only to, and may be registered and exchanged for
Securities registered only in the name or names of, such Person or Persons as
the Depositary for such Global Security shall have directed and no transfer
thereof other than such a transfer may be registered. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, a Global Security to which the restriction set forth in the first
sentence of this Section 2.05(f) shall apply, whether pursuant to this Section
2.05, Section 2.06, 2.07, 3.05, or 10.06 or otherwise, will be authenticated and
delivered in the form of, and will be, a Global Security.
16
Section 2.06. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute and register and upon Company Order the Trustee will
authenticate and deliver temporary Securities (printed, lithographed, or
typewritten), of any authorized denomination, and substantially in the form of
the definitive Securities but with such omissions, insertions, and variations as
may be appropriate for temporary Securities, all as may be determined by the
officers executing such Securities as evidenced by their execution of such
Securities; provided, however, that the Company will use reasonable efforts to
-------- -------
have definitive Securities of that series available at the times of any issuance
of Securities under this Indenture. Every temporary Security will be executed
and registered by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. The Company will execute and register and furnish
definitive Securities of such series as soon as practicable and thereupon any or
all temporary Securities of such series may be surrendered in exchange therefor
at the office or agency of the Company in the Place of Payment for that series,
and the Trustee will authenticate and deliver in exchange for such temporary
Securities of such series one or more definitive Securities of the same series,
of any authorized denominations, and of a like aggregate principal amount and
tenor. Such exchange will be made by the Company at its own expense and without
any charge to the Holder therefor. Until so exchanged, the temporary Securities
of any series will be entitled to the same benefits under this Indenture as
definitive Securities of the same series authenticated and delivered hereunder.
Section 2.07. Mutilated, Destroyed, Lost, and Stolen Securities.
(a) If any mutilated Security is surrendered to the Trustee, the
Company will execute and the Trustee will authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss, or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company will execute and the Trustee will authenticate
and deliver, in lieu of any such destroyed, lost, or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost, or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
(d) Upon the issuance of any new Security under this Section
2.07, the Company may require the payment of a sum sufficient to cover any tax
or other governmental
17
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
(e) Every new Security of any series issued pursuant to this
Section 2.07 in exchange for any mutilated Security or in lieu of any destroyed,
lost, or stolen Security will constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost, or
stolen Security shall be at any time enforceable by anyone, and will be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and will
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost, or stolen Securities.
Section 2.08. Cancellation of Surrendered Securities.
All Securities surrendered for payment, redemption, registration
of transfer or exchange, or for credit against any sinking fund payment will, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and will be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered will be promptly cancelled by the Trustee. No Securities will be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section 2.08, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee will be disposed of as directed by a
Company Order.
Section 2.09. Payment of Interest; Interest Rights Preserved.
(a) Except as otherwise provided in accordance with Section 2.01
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date will be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
(b) 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
(herein called "Defaulted Interest") will forthwith cease to be payable to the
Holder on the relevant regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company together with interest
thereon (to the extent permitted by law) at the rate of interest applicable to
such Security, at its election in each case, as provided in clause (i) or (ii)
below:
(i) The Company may elect to make payment of any Defaulted
Interest (and interest thereon, if any) to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on a
18
Special Record Date for the payment of such Defaulted Interest, which will
be fixed in the following manner. The Company will notify the Trustee in
writing of the amount of Defaulted Interest (and interest thereon, if any)
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company will deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest (and interest thereon, if any)
or will 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 (and interest thereon, if any) as provided in this clause (i).
Thereupon the Trustee will fix a Special Record Date for the payment of
such Defaulted Interest (and interest thereon, if any) which will be not
more than 15 calendar days and not less than 10 calendar days prior to the
date of the proposed payment and not less than 10 calendar days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
will promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, will cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 calendar days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest (and interest thereon, if any)
and the Special Record Date therefor having been so mailed, such Defaulted
Interest will be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and will no longer be payable
pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest (and
interest thereon, if any) on the Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause (ii), such
manner of payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section 2.09,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security will carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 2.10. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and any
premium and (subject to Section 2.09) any interest on such Security and for all
other purposes whatsoever, whether or not such Security shall be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
will be affected by notice to the contrary.
19
Section 2.11. Computation of Interest.
Except as otherwise specified in accordance with Section 2.01 for
Securities of any series, interest on the Securities of each series will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Article III. Redemption of Securities.
Section 3.01. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity will be redeemable in accordance with their terms and (except as
otherwise specified in accordance with Section 2.01 for Securities of any
series) in accordance with this Article III.
Section 3.02. Election to Redeem; Notice to Trustee.
(a) The election of the Company to redeem any Securities will be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company will, at
least 60 calendar days prior to the Redemption Date fixed by the Company (unless
a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company will furnish the Trustee
with an Officer's Certificate evidencing compliance with such restriction.
(b) Notice of redemption of Securities to be redeemed at the
election of the Company will be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and will
be irrevocable. Notice of redemption will be given by mail, first-class postage
prepaid, not less than 30 or more than 60 calendar days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register. All notices of redemption will identify the Securities to
be redeemed (including the CUSIP numbers thereof, if applicable) and will state
(i) the Redemption Date, (ii) the Redemption Price, (iii) if less than all the
Outstanding Securities of any series are to be redeemed, the identification
(and, in the case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed, (iv) that on the
Redemption Date the Redemption Price will become due and payable upon each such
Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date, (v) the place or places where such Securities are
to be surrendered for payment of the Redemption Price, (vi) that the redemption
is for a sinking fund, if such is the case, and (vii) the specific provision of
this Indenture pursuant to which such Securities are to be redeemed.
(c) If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed will be selected not more
than 60 calendar days prior to the Redemption Date by the Trustee (from the
Outstanding Securities of such series not previously
20
called for redemption) by such method as the Trustee may deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series. The Trustee will promptly notify the Company in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
(d) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities will
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
Section 3.03. Deposit of Redemption Price.
At or prior to 10:00 a.m., New York City time, on any Redemption
Date, the Company will deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 6.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
any accrued interest on, all of the Securities that are to be redeemed on that
date.
Section 3.04. Securities Payable on Redemption Date.
(a) Notice of redemption having been given as aforesaid, the
Securities so to be redeemed will, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company defaults in the payment of the Redemption Price and accrued
interest) such Securities will cease to accrue interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security will
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified in
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accordance with Section 2.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates in accordance with their terms
and the provisions of Section 2.09.
(b) If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium will, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 3.05. Securities Redeemed in Part.
Any Security that is to be redeemed only in part will be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company will execute, and
the Trustee will authenticate and deliver to the Holder of such Security without
service
21
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Article IV. Sinking Funds.
Section 4.01. Applicability of Article.
The provisions of this Article IV will be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified in accordance with Section 2.01 for Securities of such series. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
amount of any sinking fund payment may be subject to reduction as provided in
Section 4.02. Each sinking fund payment with respect to Securities of a
particular series will be applied to the redemption of Securities of such series
as provided for by the terms of Securities of such series.
Section 4.02. Satisfaction of Sinking Fund Payments With Securities.
The Company (a) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (b) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited.
Such Securities will be received and credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment will
be reduced accordingly.
Section 4.03. Redemption of Securities for Sinking Fund.
Not less than 60 calendar days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee an Officer's Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, that is to be satisfied by payment of cash and the
portion thereof, if any, that is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 4.02 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 calendar days before
each such sinking fund payment date, the Trustee will select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 3.02(c) and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
3.02(b). Such notice having been duly given, the redemption of such Securities
will be made upon the terms and in the manner stated in Sections 3.04 and 3.05.
22
Article V. Defeasance and Covenant Defeasance.
ection 5.01. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any
time, to have either Section 5.02 or Section 5.03 applied to the Outstanding
Securities of any series designated pursuant to Section 2.01 as being defeasible
pursuant to this Article V (hereinafter called "Defeasible Series"), upon
compliance with the conditions set forth below in this Article V, provided that
--------
Section 5.02 will not apply to any series of Securities that is convertible into
Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or
exchangeable for any other securities pursuant to Section 2.01(b)(xvii).
Section 5.02. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
5.01 to have this Section 5.02 applied to the Outstanding Securities of any
Defeasible Series and subject to the proviso to Section 5.01, the Company will
be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section 5.02 on and
after the date the conditions set forth in Section 5.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means that
the Company will 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 the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, will execute proper instruments acknowledging the same),
subject to the following which will survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of Securities of such series to
receive, solely from the trust fund described in Section 5.04 and as more fully
set forth in Section 5.04, payments in respect of the principal of and any
premium and interest on such Securities of such series when payments are due,
(b) the Company's obligations with respect to the Securities of such series
under Sections 2.05, 2.06, 2.07, 6.02, 6.03, and 10.06, (c) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder, and (d) this Article V.
Subject to compliance with this Article V, the Company may exercise its option
provided in Section 5.01 to have this Section 5.02 applied to the Outstanding
Securities of any Defeasible Series notwithstanding the prior exercise of its
option provided in Section 5.01 to have Section 5.03 applied to the Outstanding
Securities of such series.
Section 5.03. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
5.01 to have this Section 5.03 applied to the Outstanding Securities of any
Defeasible Series, (a) the Company will be released from its obligations under
Sections 6.04 through 6.07, inclusive, Section 11.01, and such provisions of any
Supplemental Indenture with respect to such Defeasible Series that provide that
this Section 5.03 may apply to such provisions, and (b) the occurrence of any
event specified in Sections 8.01(a)(iii), 8.01(a)(iv) (with respect to any of
Sections 6.04 through 6.07, inclusive, Section 11.01, and such provisions of any
Supplemental Indenture as may be specified in such Supplemental Indenture),
8.01(a)(v), 8.01(a)(vi), and 8.01(a)(ix) will be deemed not to be or result in
an Event of Default, in each case with respect to the Outstanding Securities of
such
23
series as provided in this Section on and after the date the conditions set
forth in Section 5.04 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and will have no liability in respect of any term, condition, or
limitation set forth in any such specified Section or provision (to the extent
so specified in the case of Section 8.01(a)(iv)), whether directly or indirectly
by reason of any reference elsewhere herein to any such Section or provision or
by reason of any reference in any such Section or provision to any other
provision herein or in any other document, but the remainder of this Indenture
and the Securities of such series will be unaffected thereby.
Section 5.04. Conditions to Defeasance or Covenant Defeasance.
The following will be the conditions to application of either
Section 5.02 or Section 5.03 to the Outstanding Securities of any Defeasible
Series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 9.08 and agrees to comply with the
provisions of this Article V applicable to it) as trust funds in trust for
the benefit of the Holders of Outstanding Securities of such series (i)
money in an amount, or (ii) U.S. Government Obligations that through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, without reinvestment, not later
than one day before the due date of any payment, money in an amount, or
(iii) a combination thereof, in each case sufficient to pay and discharge,
and which will be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any premium and
interest on the Securities of such series on the respective Stated
Maturities or on any earlier date or dates on which the Securities of such
series shall be subject to redemption and the Company shall have given the
Trustee irrevocable instructions satisfactory to the Trustee to give notice
to the Holders of the redemption of the Securities of such series, all in
accordance with the terms of this Indenture and the Securities of such
series.
(b) In the case of an election under Section 5.02, the Company shall
have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon, such opinion shall confirm that, the
Holders of the Outstanding Securities of such series will not recognize
gain or loss for federal income tax purposes as a result of the deposit,
Defeasance, and discharge to be effected with respect to the Securities of
such series and will be subject to federal income tax on the same amount,
in the same manner, and at the same times as would be the case if such
deposit, Defeasance, and discharge were not to occur.
(c) In the case of an election under Section 5.03, the Company shall
have delivered to the Trustee an Opinion of Counsel (from a counsel who
shall not be an employee of the Company) to the effect that the Holders of
the Outstanding Securities of
24
such series (i) will not recognize gain or loss for federal income tax
purposes as a result of the deposit and Covenant Defeasance to be effected
with respect to the Securities of such series and (ii) will be subject to
federal income tax on the same amount, in the same manner, and at the same
times as would be the case if such deposit and Covenant Defeasance were not
to occur.
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel (from a counsel who shall not be an employee of the Company)
stating that the defeasance trust does not violate the Investment Company
Act of 1940.
(e) The Company shall have delivered to the Trustee the opinion of a
nationally recognized independent public accounting firm certifying the
sufficiency of the amount of the moneys, U.S. Government Obligations, or a
combination thereof, placed on deposit to pay, without regard to any
reinvestment, the principal of and any premium and interest on the
Securities on the Stated Maturity thereof or on any earlier date on which
the Securities shall be subject to redemption.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate (i) stating that the deposit was not made by the Company with
the intent of preferring the holders of the Securities over the other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others, and (ii) to the
effect that the Securities of such series, if then listed on any securities
exchange, will not be delisted solely as a result of such deposit.
(g) No Event of Default or event that (after notice or lapse of time
or both) would become an Event of Default shall have occurred and be
continuing at the time of such deposit or, with regard to any Event of
Default or any such event specified in Sections 8.01(a)(vii) and (viii), at
any time on or prior to the 90th calendar day after the date of such
deposit (it being understood that this condition will not be deemed
satisfied until after such 90th calendar day).
(h) Such Defeasance or Covenant Defeasance will not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(i) Such Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(j) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
25
Section 5.05. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
(a) Subject to the provisions of Section 6.03(e), all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section 5.05
and Section 5.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 5.04 in respect of the
Securities of any Defeasible Series will be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of Securities of such series, of all sums due and to
become due thereon in respect of principal and any premium and interest, but
money so held in trust need not be segregated from other funds except to the
extent required by law.
(b) The Company will pay and indemnify the Trustee against any
tax, fee, or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 5.04 or the principal and interest
received in respect thereof other than any such tax, fee, or other charge that
by law is for the account of the Holders of Outstanding Securities.
(c) Notwithstanding anything in this Article V to the contrary,
the Trustee will deliver or pay to the Company from time to time upon a Company
Request any money or U.S. Government Obligations held by it as provided in
Section 5.04 with respect to Securities of any Defeasible Series that are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
Section 5.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article V with respect to the Securities of any series
by reason of any order or judgment of any court or governmental authority
enjoining, restraining, or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities of such series
will be revived and reinstated as though no deposit had occurred pursuant to
this Article V with respect to Securities of such series until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 5.05 with respect to Securities of such series in accordance with
this Article V; provided, however, that if the Company makes any payment of
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principal of or any premium or interest on any Security of such series following
the reinstatement of its obligations, the Company will be subrogated to the
rights of the Holders of Securities of such series to receive such payment from
the money so held in trust.
26
Article VI. Particular Covenants of the Company.
Section 6.01. Payment of Principal, Premium, and Interest on Securities.
The Company, for the benefit of each series of Securities, will
duly and punctually pay the principal of and any premium and interest on the
Securities of that series in accordance with the terms of the Securities and
this Indenture.
Section 6.02. Maintenance of Office or Agency.
(a) The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices, and demands may be made or served at
the Corporate Trust Office, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices, and demands.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
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rescission will in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 6.03. Money for Securities Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before each due date of
the principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
(b) Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, prior to each due date of the principal
of or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
(c) The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying
27
Agent will agree with the Trustee, subject to the provisions of this Section
6.03, that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Securities of that
series) in the making of any payment in respect of the Securities of that
series, and upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Securities of that series.
(d) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will be released from all further liability with respect to
such money.
(e) Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium, or interest has become due and payable
will be paid to the Company upon a Company Request (or, if then held by the
Company, will be discharged from such trust); and the Holder of such Security
will thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, will thereupon cease; provided, however, that the Trustee or such
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Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which will not
be less than 30 calendar days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 6.04. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments,
and governmental charges levied or imposed upon the Company or any Subsidiary of
the Company or upon the income, profits, or property of the Company or any
Subsidiary of the Company, and (b) all lawful claims for labor, materials, and
supplies, in each case which, if unpaid, would by law become a lien upon the
property of the Company or any Subsidiary of the Company and would have a
Material Adverse Effect; provided, however, that (x) the Company will not be
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required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge, or claim the amount, applicability, or validity of which is
being contested in good faith by appropriate proceedings, and (y) any failure to
pay any such tax, assessment, charge, or claim shall not constitute a breach of
this Section 6.04 if such failure (i) was not willful and (ii) does not and will
not result in any Material Adverse Effect.
28
Section 6.05. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair, and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments, and improvements thereof; provided,
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however, that nothing in this Section 6.05 will (i) require the Company to take
any action that it determines in good faith to be contrary to its best
interests, so long as the failure to take such action will not have a Material
Adverse Effect, or (ii) prevent the Company from taking any action that it
determines in good faith to be in its best interests, so long as the taking of
such action will not have a Material Adverse Effect.
Section 6.06. Existence.
Subject to Article XI, the Company will, and will cause each of
its Subsidiaries to, do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights (charter and statutory), and
franchises; provided, however, that, except with respect to the preservation of
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the Company's existence, nothing in this Section 6.06 will (i) require the
Company to take any action that it determines in good faith to be contrary to
its best interests, so long as the failure to take such action will not a
Material Adverse Effect, or (ii) prevent the Company from taking any action that
it determines in good faith to be in its best interests, so long as the taking
of such action will not have a Material Adverse Effect.
Section 6.07. Compliance with Laws.
The Company will, and will cause each of its Subsidiaries to,
comply with all applicable federal, state, local, or foreign laws, rules,
regulations, or ordinances, including without limitation such laws, rules,
regulations, or ordinances relating to pension, environmental, employee, and tax
matters, to the extent that, in the aggregate, the failure so to comply would
have a Material Adverse Effect.
Section 6.08. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 30 days after
the end of each calendar quarter of the Company following the date hereof, an
Officer's Certificate signed by either the Chief Executive Officer, Chief
Financial Officer or the Controller of the Company stating whether or not to the
knowledge of such person after due inquiry the Company is in default in the
performance and observance of any of the terms, provisions, and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and/or whether an event which has a Material Adverse Effect
has occurred, and, if the Company is in default, specifying all such defaults
and the nature and status thereof of which such person may have such knowledge.
29
Section 6.09. Financial Reporting.
To the extent the Company is required to file reports with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, the Company
shall provide copies to the Trustee of each Annual Report on Form 10-K, each
Quarterly Report on Form 10-Q, and each Current Report on Form 8-K that is filed
by the Company with the Commission within 15 days of the filing of the same. To
the extent that the Company is not required to file such periodic reports with
the Commission, the Company shall provide copies to the Trustee of consolidated
audited financial statements (including notes) of the Company covering the most
recently completed fiscal year as soon as available but not later than 120 days
after the end of the fiscal year until this Indenture terminates and shall also
provide quarterly unaudited financial statements (including notes to the extent
prepared) within 45 days after the end of each quarter until the eighth
anniversary of the date hereof; provided, however, that the Company shall
provide quarterly unaudited financial statements to the Trustee beyond the
eighth anniversary to the extent it is required to do so under the Funding
Payment Agreement (Classes 5 through 19) among the Company, The Dow Chemical
Company, Corning Incorporated, the Settlement Facility, the Litigation Facility,
and the Claimants' Advisory Committee (the capitalized terms used in this
proviso, to the extent not otherwise defined, have the meanings set forth in the
Company's Amended Joint Plan of Reorganization dated February 4, 1999).
Section 6.10. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision, or condition set forth in Sections 6.04 through 6.07,
inclusive, and the provisions of any Supplemental Indenture specified in such
Supplemental Indenture, with respect to the Securities of any series if the
Holders of a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision, or condition,
but no such waiver will extend to or affect such term, provision, or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision, or condition will remain in full force and
effect.
Article VII. Securities Holders' Lists And Reports By
The Company And The Trustee.
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 calendar days after the applicable Regular
Record Date and to the extent known by the Company, a list for each series of
Securities, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of such series as of such Regular Record
Date and (b) at such other times as the Trustee may request in writing, within
30 calendar days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 calendar days prior to
the time such list is
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furnished; excluding from any such list names and addresses received by the
---------
Trustee in its capacity as Security Registrar.
Section 7.02. Preservation of Information; Communication to Holders.
(a) The Trustee will preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.01 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, will be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them will be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
The Trustee will transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act or any rule or regulation of the Commission promulgated
pursuant thereto at the times and in the manner provided therein. A copy of
each such report will, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed, with
the Commission, and with the Company. The Company will promptly notify the
Trustee when any Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company will file with the Trustee and the Commission, and
transmit to Holders, such information, documents, and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act or any
rule or regulation of the Commission promulgated pursuant thereto at the times
and in the manner provided therein; provided that any such information,
--------
documents, or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act will be filed with the Trustee within 15
calendar days after the same is so required to be filed with the Commission.
31
Article VII. Default.
Section 8.01. Event of Default.
(a) "Event of Default," wherever used herein with respect to
Securities of any series, means each one of the following events which shall
have occurred and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree, or order of any court or any order,
rule, or regulation of any administrative or governmental body):
(i) default in the payment of any installment of interest upon
any Security of that series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(ii) default in the payment of all or any part of the principal
of (or premium, if any, on) any Security of that series as and when the
same shall become due and payable either at maturity, upon redemption, by
declaration or otherwise; or
(iii) default in the making of any sinking fund payment when and
as due by the terms of a Security of that series, and the continuance of
such default for a period of 5 calendar days;
(iv) default in the performance, or breach, of any covenant or
warranty of the Company in respect of the Securities (other than a covenant
or warranty in respect of any Security 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 one
or more 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 Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series affected thereby 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;
(v) Debt of the Company, or any Domestic Subsidiary, is not paid
within any applicable grace period after final maturity or is accelerated
by the holders thereof because of a default, the total amount of such Debt
unpaid or accelerated exceeds $100,000,000 or its foreign currency
equivalent and such default continues for 10 days after the Company
receives notice thereof;
(vi) any judgment or decree for the payment of money in excess of
$100,000,000 is rendered against the Company or any Domestic Subsidiary and
is not discharged and either (A) an enforcement proceeding has been
commenced by any creditor upon such judgment or decree or (B) there is a
period of 60 days following such judgment or decree during which such
judgment or decree is not discharged, waived or the execution thereof
stayed and, in the case of (B), such default continues for 10 days after
the Company receives notice thereof;
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(vii) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or
for any substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days;
(viii) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for any substantial
part of its property, or make any general assignment for the benefit of
creditors; or
(ix) any other Event of Default provided with respect to
Securities of that series.
(b) If an Event of Default (other than an Event of Default
arising under Section 8.01(a)(vii) or (viii)) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) will become immediately due and payable. If an Event of Default under
Section 8.01(a)(vii) or (viii) occurs, then the principal of, premium, if any,
and accrued interest on the Securities shall become immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
(c) At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article VIII provided, the Holders of a majority in
principal amount of the outstanding Securities of that series, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if (i) the Company has paid or deposited with the Trustee a sum
---
sufficient to pay (A) all overdue interest on all Securities of that series, (B)
the principal of (and premium, if any, on) any Securities of that series which
have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and (D)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements, and advances of the Trustee and its
agents and counsel and (ii) all Events of Default with respect to Securities
----
of that series, other than the non-payment of the principal of Securities of
that series that has become due solely by such
33
declaration of acceleration, have been cured or waived as provided in Section
8.01(d). No such rescission will affect any subsequent default or impair any
right consequent thereon.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default (i) in the payment of the
principal of or any premium or interest on any Security of such series or (ii)
in respect of a covenant or provision hereof which under Article X cannot be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected. Upon any such waiver, such default will cease
to exist, and any Event of Default arising therefrom will be deemed to have been
cured, for every purpose of this Indenture, but no such waiver will extend to
any subsequent or other default or impair any right consequent thereon.
Section 8.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Securities on Default in Payment of Interest or Principal; Suits
for Enforcement by Trustee.
(a) The Company covenants that if (i) default is made in the
payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 calendar days or (ii)
default is made in the payment of the principal of (or premium, if any, on) any
Security when it becomes due and payable and such default continues for a period
of 5 calendar days, the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest will be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as will be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements, and
advances of the Trustee and its agents and counsel.
(b) If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
(c) In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its creditors, the
Trustee will be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee will be authorized to collect and receive
any money or other property payable or deliverable on any such claims and to
distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator, or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee consents to the making of such
34
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements, and advances of the
Trustee and its agents and counsel, and any other amounts due the Trustee under
Section 9.06.
(d) No provision of this Indenture will be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment, or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however, that the Trustee may, on behalf of the Holders, vote for
-------- -------
the election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
(e) All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee will be brought in
its own name as trustee of an express trust, and any recovery of judgment will,
after provision for the payment of the reasonable compensation, expenses,
disbursements, and advances of the Trustee and its agents and counsel, be for
the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 8.03. Application of Money Collected by Trustee.
Any money collected by the Trustee pursuant to this Article VIII
will be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 9.06; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the
Securities in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, except to the extent
the Securities of a series by their express terms are
subordinate and subject in right of payment to the prior
payment of other Indebtedness, according to the amounts
due and payable on such Securities for principal and any
premium and interest, respectively.
Section 8.04. Limitation on Suits by Holders of Securities.
No Holder of any Security of any series will have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless (a) such Holder has previously
35
given written notice to the Trustee of a continuing Event of Default with
respect to the Securities of that series, (b) the Holders of not less than 25%
in principal amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder, (c) such Holder or Holders have
offered to the Trustee reasonable indemnity against the costs, expenses, and
liabilities to be incurred in compliance with such request, (d) the Trustee for
60 calendar days after its receipt of such notice, request, and offer of
indemnity has failed to institute any such proceeding, and (e) no direction
inconsistent with such written request has been given to the Trustee during such
60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series, it being understood and intended that no
one or more of such Holders will have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect, disturb, or
prejudice the rights of any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all of such Holders.
Section 8.05. Rights and Remedies Cumulative; Delay or Omission in Exercise of
Rights not a Waiver of Event of Default.
(a) Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost, or stolen Securities in the last
paragraph of Section 2.07, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy will, 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, will not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
(b) No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
will impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article VIII or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 8.06. Rights of Holders of Majority in Principal Amount of Outstanding
Securities to Direct Trustee.
The Holders of a majority in principal amount of the Outstanding
Securities of any series will have the right to direct the Trustee with respect
to the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, and the exercise of any trust or power conferred on
the Trustee, in each case with respect to the Securities of such series,
provided that (a) such direction will not be in conflict with any rule of law or
--------
with this Indenture and (b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
36
Section 8.07. Requirement of an Undertaking to Pay Costs in Certain Suits
Under the Indenture or Against the Trustee.
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section 8.07 nor the Trust Indenture
--------
Act will be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Trustee or by the Company.
Section 8.08. Notice of Defaults.
If a Default occurs hereunder with respect to Securities of any
series, the Trustee will give the Holders of Securities of such series notice of
such Default actually known to it as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any Default of the
-------- -------
character specified in Section 8.01(a)(iv) with respect to Securities of such
series no such notice to Holders will be given until at least 30 calendar days
after the occurrence thereof. The Company will give the Trustee notice of any
uncured Event of Default within 10 days after any Responsible Officer of the
Company becomes aware of or receives actual notice of such Event of Default.
Section 8.09. Unconditional Right of Holders to Receive Principal, Premium,
and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security will have the right, which is absolute and unconditional,
to receive payment of the principal of and any premium and (subject to Section
2.09) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights may not
be impaired without the consent of such Holder.
Section 8.10. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee, and the Holders will
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders will continue
as though no such proceeding had been instituted.
37
Section 8.11. Trustee May File Proofs of Claims.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the
Subsidiaries (or any other obligor upon the Securities), their creditors or
their property and shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claim and to
distribute the same, and any custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee hereunder. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Article IX. Concerning the Trustee.
Section 9.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee will be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture will require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee will be subject to the provisions of this Section 9.01.
Section 9.02. Certain Rights of Trustee.
Subject to the provisions of Section 9.01: (a) the Trustee may
rely and will be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness, or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties; (b) any
request or direction of the Company mentioned herein will be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board
will be sufficiently evidenced by a Board Resolution; (c) whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering, or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an Officer's
Certificate; (d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel will be full and complete authorization
and
38
protection in respect of any action taken, suffered, or omitted by it hereunder
in good faith and in reliance thereon; (e) the Trustee will 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; (f) the Trustee
will not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness, or other paper or document, but the Trustee, in its reasonable
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it will be entitled to examine the books,
records, and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the
Trustee will not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
Section 9.03. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, may be taken as the statements of the
Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent will not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 9.04. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar, or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 9.07 and 9.12, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar, or such other agent.
Section 9.05. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required herein or by law. The
Trustee will be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
Section 9.06. Compensation and Reimbursement.
The Company will (a) pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation will not be limited to any provision of law in regard to the
compensation of a trustee of an express trust); (b) except as otherwise
expressly provided herein, reimburse the Trustee upon its request for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee
in accordance with any
39
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of agents and counsel), except any such expense,
disbursement, or advance as may be attributable to its negligence or bad faith;
and (c) indemnify the Trustee for, and hold the Trustee harmless against, any
loss, liability, or expense incurred without negligence or bad faith on its part
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 9.07. Disqualification; Conflicting Interests.
If the Trustee has or acquires a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee will either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 9.08. Corporate Trustee Required Eligibility.
There will at all times be one or more Trustees hereunder with
respect to the Securities of each series, at least one of which will be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $100,000,000 and its Corporate Trust
Office or principal office in New York City, or any other major city in the
United States that is acceptable to the Company. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a supervising or examining state or federal authority, then for the purposes
of this Section 9.08, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of financial condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section 9.08, it
will resign immediately in the manner and with the effect hereinafter specified
in this Article IX.
Section 9.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article IX will become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 9.10.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
40
(d) If, at any time, (i) the Trustee fails to comply with
Section 9.07 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, (ii) the
Trustee ceases to be eligible under Section 9.08 and fails to resign after
written request therefor by the Company or by any such Holder, or (iii) the
Trustee becomes incapable of acting or is adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property is appointed or any public officer
takes charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation, or liquidation, then, in any such case,
(A) the Company by a Board Resolution may remove the Trustee with respect to all
Securities or (B) subject to Section 8.07, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee resigns, is removed, or becomes incapable of
acting, or if a vacancy occurs in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company by a Board
Resolution will promptly appoint a successor Trustee or Trustees with respect to
the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there will be only one Trustee with
respect to the Securities of any particular series) and will comply with the
applicable requirements of Section 9.10. If, within one year after such
resignation, removal, or incapability or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series is appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed will, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 9.10,
become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 9.10, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company will give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all holders of Securities of such series in the manner provided in Section
13.03. Each notice will include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 9.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed will
execute, acknowledge, and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee will become effective and such successor Trustee,
without any further act, deed, or conveyance, will become vested with all the
41
rights, powers, trusts, and duties of the retiring Trustee, but, on the request
of the Company or the successor Trustee, such retiring Trustee will, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers, and duties of the retiring Trustee and
will duly assign, transfer, and deliver to such Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee, and each successor Trustee with respect to the Securities
of one or more series will execute and deliver an indenture supplemental hereto
wherein such successor Trustee will accept such appointment and which (i) will
contain such provisions as may be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts, and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (ii) if the
retiring Trustee is not retiring with respect to all Securities, will contain
such provisions as may be deemed necessary or desirable to confirm that all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring will continue to be vested in the retiring Trustee, and (iii) will add
to or change any of the provisions of this Indenture as may be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture will constitute such Trustees as co-trustees of the same
trust and that each such Trustee will be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustees and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee will become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed, or conveyance, will become vested with all the rights, powers,
trusts, and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates;
but on request of the Company or any successor Trustee, such retiring Trustee
will duly assign, transfer, and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company will
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all applicable rights, powers, and trusts
referred to in the preceding paragraphs of this Section 9.10.
(d) No successor Trustee will accept its appointment unless at
the time of such acceptance such successor Trustee is qualified and eligible
under this Article IX.
Section 9.11. Merger, Conversion, Consolidation, or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which the Trustee may be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, will be the successor of the Trustee
42
hereunder, provided such corporation is otherwise qualified and eligible under
this Article IX, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion, or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 9.12. Preferential Collection of Claims Against Company.
If and when the Trustee is or becomes a creditor of the Company
(or any other obligor upon the Securities), the Trustee will be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 9.13. Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which will be authorized to
act on behalf of the Trustee to authenticate Securities of such series issued
upon original issue and upon exchange, registration of transfer, or partial
redemption thereof or pursuant to Section 2.07, and Securities so authenticated
will be entitled to the benefits of this Indenture and will be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference will be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof, or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such Authenticating Agent publishes reports
of financial condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section 9.13, the combined capital and surplus of such Authenticating Agent will
be deemed to be its combined capital and surplus as set forth in its most recent
report of financial condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 9.13, such Authenticating Agent will resign immediately in the manner
and with the effect specified in this Section 9.13.
(b) Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion, or consolidation to which such
Authenticating Agent may be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, will
continue to be an Authenticating Agent, provided such corporation is otherwise
eligible under this Section 9.13, without the execution or filing of any paper
or any further act on the part of the Trustee or the Authenticating Agent.
43
(c) An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions this Section 9.13, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and will mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder will
become vested with all the rights, powers, and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent will be appointed unless eligible under the
provisions of this Section 9.13.
(d) The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section 9.13,
and the Trustee will be entitled to be reimbursed for such payments, subject to
the provisions of Section 9.06.
(e) If an appointment with respect to one or more series of
Securities is made pursuant to this Section 9.13, the Securities of such series
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative form of certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
------------------------------------------
As Trustee
By:
---------------------------------------
As Authenticating Agent
By:
--------------------------------------
Authorized Officer
44
Article X. Supplemental Indentures And Certain Actions.
Section 10.01. Purposes for Which Supplemental Indentures May Be Entered Into
Without Consent of Holders.
Without the consent of or notice to any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities, all to the extent otherwise permitted
hereunder;
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions of this Indenture
to such extent as may be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form;
(e) to add to, change, or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
--------
such addition, change, or elimination (i) will neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) will become effective only when there is no such Security Outstanding;
(f) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02;
(g) 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 may be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 9.10; or
(h) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any
45
other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (h) will
--------
not adversely affect the interests of the Holders of Securities of any
series in any material respect.
Section 10.02. Modification of Indenture With Consent of Holders of at Least a
Majority in Principal Amount of Outstanding Securities.
(a) With the consent of the Holders of a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
-------- -------
that no such supplemental indenture will, without the consent of the Holder
of each Outstanding Security affected thereby:
(i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
8.01(b), or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date);
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of the Holders of which
is required for any such supplemental indenture, or the consent of the
Holders of which is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(iii) modify any of the provisions of this Section 10.02,
Section 8.01(d) or Section 6.09, except to increase the percentage in
principal amount of Holders required under any such Section or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause (c) will not be
-------- -------
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section 10.02
and Section 6.09, or the deletion of this proviso, in accordance with the
requirements of Sections 9.10 and 10.01(g).
(b) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, will be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
46
(c) It will not be necessary for any Act of Holders under this
Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it will be sufficient if such Act approves the substance thereof.
Section 10.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article X or the modifications thereby
of the trusts created by this Indenture, the Trustee will be entitled to
receive, and (subject to Section 9.01) will be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but will not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, or immunities under this Indenture or otherwise.
Section 10.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article X, this Indenture will be modified in accordance therewith, and such
supplemental indenture will form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder will be bound thereby.
Section 10.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article X
will conform to the requirements of the Trust Indenture Act.
Section 10.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article X may, and will
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Article XI. Consolidation, Merger, Sale, or Transfer.
Section 11.01. Consolidations and Mergers of Company and Sales Permitted Only
on Certain Terms.
(a) The Company covenants that it will not merge or consolidate
with any other corporation or sell or convey (including by way of lease) all or
substantially all of its assets to any Person, unless (i) either the Company or
one of its wholly-owned Subsidiaries shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Company (if other than the Company or one of
its
47
wholly-owned Subsidiaries) shall be a corporation or entity organized under the
laws of the United States of America or any State thereof and shall expressly
assume the due and punctual payment of the principal of and interest on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of the Indenture to be
performed or observed by the Company, by supplemental indenture reasonably
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation or entity, and (ii) the Company or such successor corporation or
entity, as the case may be, shall not, immediately after such merger or
consolidation, or such sale or conveyance, be in default in the performance of
any such covenant or condition.
(b) Such successor corporation or entity under paragraph (a) of
this Section will succeed to and be substituted for the Company with the same
effect as if it had been named as a party to this Indenture, and thereafter the
Company will be relieved of all obligations and covenants under this Indenture
and the Securities.
Article XII. Satisfaction and Discharge of Indenture.
Section 12.01. Satisfaction and Discharge of Indenture.
This Indenture will upon a Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense the Company, will execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when: (a) either (i) all Securities
theretofore authenticated and delivered (other than (A) Securities which have
been destroyed, lost, or stolen and which have been replaced or paid as provided
in Section 2.07 and (B) Securities for the payment of which money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 6.03) have been delivered to the Trustee for cancellation or
(ii) all such Securities not theretofore delivered to the Trustee for
cancellation (A) have become due and payable, (B) will become due and payable at
their Stated Maturity within one year, or (C) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of clause (A), (B), or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
such purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be; (b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and (c) the Company has
delivered to the Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.06, the obligations of
the Company to any Authenticating Agent under Section 9.13, and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section 12.01, the obligations of the Trustee under Sections 6.03(e) and
12.02, will survive.
48
Section 12.02. Application of Trust Money.
Subject to provisions of Section 6.03(e), all money deposited
with the Trustee pursuant to Section 12.01 will be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.
Article XII. Miscellaneous Provisions.
Section 13.01. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises, and agreements in this
Indenture contained by or on behalf of the Company will bind its successors and
assigns, whether so expressed or not.
Section 13.02. Service of Required Notice to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver, Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with (a) the Trustee by any
Holder or by the Company will, upon receipt, be sufficient for every purpose
hereunder if made, given, furnished, or filed in writing received by the Trustee
at its Corporate Trust Office (addressed to the attention of Corporate Trust
Department) or (b) the Company by the Trustee or by any Holder will, upon
receipt, be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished, or filed in a writing received by
the Company at its principal executive offices (addressed to the attention of
both its Chief Financial Officer and its General Counsel).
Section 13.03. Service of Required Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice will be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder will affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver will be the equivalent of such notice. Waivers of notice by Holders
will be filed with the Trustee, but such filing will not be a condition
precedent to the validity of any action taken in reliance upon such waiver. In
case by reason of the suspension of regular mail service or by reason of any
other cause it will be impracticable to give such notice by mail, then such
notification as may be made with the approval of the Trustee will constitute a
sufficient notification for every purpose hereunder.
49
Section 13.04. Indenture and Securities to be Construed in Accordance with the
Laws of the State of New York.
This Indenture and the Securities will be deemed to be a
contract made under the laws of the State of New York, and for all purposes will
be construed in accordance with the laws of said State without giving effect to
principles of conflict of laws of such State.
Section 13.05. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company will
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion will be given in the
form of an Officer's Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and will comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Section 13.06. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents. Where any
Person is required to make, give, or execute two or more applications, requests,
consents, certificates, statements, opinions, or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 13.07. Payments Due on Non-Business Days.
In any case where any Interest Payment Date, Redemption Date, or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision will apply in lieu of this Section
13.07)) payment of interest or principal (and premium, if any) need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and
---
no interest shall accrue for the intervening period.
--
Section 13.08. Provisions Required by Trust Indenture Act to Control.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed on any Person by Sections 310 through 317 of
the Trust Indenture Act (including provisions automatically deemed included in
this Indenture pursuant to the Trust Indenture Act unless this Indenture
provides that such provisions are excluded), which are deemed to be a part
50
of and govern this Indenture, whether or not contained herein, then such imposed
duties will control.
Section 13.09. Invalidity of Particular Provisions.
In case any one or more of the provisions contained in this
Indenture or in the Securities is for any reason held to be invalid, illegal, or
unenforceable in any respect, such the validity, illegality, or enforceability
will not affect any other provision of this Indenture or of the Securities, but
this Indenture and such Securities will be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
Section 13.10. Indenture May be Executed In Counterparts.
This instrument may be executed in any number of counterparts,
each of which will be an original, but such counterparts will together
constitute but one and the same instrument.
Section 13.11. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver, or other action provided or permitted by this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action will become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent will be sufficient for any
purpose of this Indenture and (subject to Section 9.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section
13.11.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit will also constitute sufficient proof of
his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities will be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver, or other Act of the Holder of any Security will bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange thereof or in lieu thereof
in respect of anything done, omitted, or suffered to be done by the
51
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver, or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities of such series. With regard to any record date set pursuant to
this paragraph, the Holders of Outstanding Securities of the relevant series on
such record date (or their duly appointed agents), and only such Persons, will
be entitled to give or take the relevant action, whether or not such Holders
remain Holders after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be given
or taken by any Holder will be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph will prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any such
expiration date, any action identical to, or, at any time, contrary to or
different from, the action or purported action to which such expiration date
relates, in which event the Company may set a record date in respect thereof
pursuant to this paragraph. Nothing in this Section 13.11(e) will be construed
to render ineffective any action taken at any time by the Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding Securities of
the relevant series on the date such action is so taken. Notwithstanding the
foregoing or the Trust Indenture Act, the Company will not set a record date
for, and the provisions of this Section 13.11(e) will not apply with respect to,
any notice, declaration, or direction referred to in the next paragraph.
(f) Upon receipt by the Trustee from any Holder of Securities
of a particular series of (a) any notice of default or breach referred to in
Section 8.01(a)(iv) or 8.01(a)(v) with respect to Securities of such series, if
such default or breach has occurred and is continuing and the Trustee shall not
have given such notice to the Company, (b) any declaration of acceleration
referred to in Section 8.01(b), if an Event of Default with respect to
Securities of such series has occurred and is continuing and the Trustee shall
not have given such a declaration to the Company, or (c) any direction referred
to in Section 8.06 with respect to Securities of such series, if the Trustee
shall not have taken the action specified in such direction, then a record date
will automatically and without any action by the Company or the Trustee be set
for determining the Holders of Outstanding Securities of such series entitled to
join in such notice, declaration, or direction, which record date will be the
close of business on the tenth calendar day following the day on which the
Trustee receives such notice, declaration, or direction. Promptly after such
receipt by the Trustee, and in any case not later than the fifth calendar day
thereafter, the Trustee will notify the Company and the Holders of Outstanding
Securities of such series of any such record date so fixed. The Holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, will be entitled to join in such
notice,
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declaration, or direction, whether or not such Holders remain Holders
after such record date; provided that, unless such notice, declaration, or
--------
direction shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to the 90th
calendar day after such record date, such notice, declaration, or direction will
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this Section 13.11(f) will be construed to prevent a
Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration, or direction contrary
to or different from, or, after the expiration of such period, identical to, the
notice, declaration, or direction to which such record date relates, in which
event a new record date in respect thereof will be set pursuant to this Section
13.11(f). Nothing in this Section 13.11(f) will be construed to render
ineffective any notice, declaration, or direction of the type referred to in
this Section 13.11(f) given at any time to the Trustee and the Company by
Holders (or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such notice,
declaration, or direction is so given.
(g) Without limiting the foregoing, a Holder entitled hereunder
to give or take any action hereunder with regard to any particular Security may
do so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
Section 13.12. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and will not affect the construction hereof.
Section 13.13. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, will give to any Person, other than the parties hereto and their
successors hereunder and the Holders any benefit or any legal or equitable
right, remedy, or claim under this Indenture.
____________________
53
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
[Seal] DOW CORNING CORPORATION
By: ____________________________________________
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President and Chief Financial Officer
Attest:
Name: Xxxxx X. Xxxxxxx, Esq.
Title: Vice President, Secretary and
General Counsel
[_______________]
By: ____________________________________________
Name: __________________________________________
Title: _________________________________________
Attest:
_____________________
Name: _______________
Title:_______________
54
STATE OF ___________)
) ss.:
COUNTY OF __________)
On this ____ day of ___________ ___, 1999, before me personally came
Xxxx X. Xxxxxxxxxxx, to me known, who, being by me duly sworn, did depose and
say that he/she is Vice President and Chief Financial Officer of Dow Corning
Corporation, one of the entities described in and which executed the above
instrument; that he/she knows the seal of said entity; that the seal or a
facsimile thereof affixed to said instrument is such seal; that it was so
affixed by authority of the Board of Directors of said entity, and that he/she
signed his/her name thereto by like authority.
------------------------------------
Notary Public
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------------
Notary Public
55
STATE OF ____________)
) ss.:
COUNTY OF ___________)
On this ____ day of ___________ ___, 1999, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she is ___________________ of _______________, one of the entities
described in and which executed the above instrument; that he/she knows the seal
of said entity; that the seal or a facsimile thereof affixed to said instrument
is such seal; that it was so affixed by authority of the Board of Directors of
said entity, and that he/she signed his/her name thereto by like authority.
------------------------------------
Notary Public
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
------------------------------------
Notary Public
56
