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EXHIBIT 4.3
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FORM OF
SUBORDINATED INDENTURE,
DATED AS OF _______ __, 199_,
BETWEEN
U.S. HOME CORPORATION
AND
IBJ XXXXXXXX BANK & TRUST COMPANY
TRUSTEE
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CROSS-REFERENCE TABLE
TIA
SECTION INDENTURE SECTION
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310(a)(1)................................................. 9.10
(a)(2)................................................. 9.10
(a)(3)................................................. N.A.
(a)(4)................................................. N.A.
(b).................................................... 9.08; 9.10
(c).................................................... N.A.
311(a).................................................... 9.11
(b).................................................... 9.11
(c).................................................... N.A.
312(a).................................................... 10.01; 10.02
(b).................................................... 10.02; 14.03
(c).................................................... 10.02
313(a).................................................... 9.06
(b)(1)................................................. 9.06
(b)(2)................................................. 9.06
(c).................................................... 9.06
(d).................................................... 9.06
314(a).................................................... 6.03
(b).................................................... N.A.
(c)(1)................................................. 14.04; 14.05
(c)(2)................................................. 14.04; 14.05
(c)(3)................................................. 14.05
(d).................................................... N.A.
(e).................................................... 14.05
(f).................................................... N.A.
315(a).................................................... 9.01
(b).................................................... 9.05
(c).................................................... 9.01
(d).................................................... 9.01
(e).................................................... 8.11
316(a)(last sentence)..................................... 8.05
(a)(1)(A).............................................. 8.05
(a)(1)(B).............................................. 8.04
(a)(2)................................................. Not applicable
(b).................................................... 8.07
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317(a)(1)................................................. 8.08
(a)(2)................................................. 8.09
(b).................................................... 3.05
318(a).................................................... 14.01
N.A. means not applicable
NOTE: This cross-reference table will not, for any purpose, be deemed to be a
part of this Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...................... 1
Section 1.01 Rules of Construction.................................... 1
Section 1.02 Definitions.............................................. 2
Affiliate................................................ 2
Agent.................................................... 2
Bankruptcy Law........................................... 2
Board of Directors....................................... 2
Board Resolution......................................... 2
Business Day............................................. 2
Capital Stock............................................ 2
Cash Equivalents......................................... 2
Common Equity............................................ 3
Company.................................................. 3
Company Request or Company Order......................... 3
Corporate Trust Office of the Trustee.................... 3
Covenant Defeasance...................................... 3
Custodian................................................ 3
Default.................................................. 3
Defaulted Interest....................................... 3
Defeasance............................................... 3
Defeasible Series........................................ 3
Depository............................................... 3
DTC...................................................... 3
Event of Default......................................... 4
Exchange Act............................................. 4
GAAP..................................................... 4
Global Security.......................................... 4
Holder................................................... 4
Indenture................................................ 4
Interest Payment Date.................................... 4
Issue Date............................................... 4
Legal Holiday............................................ 4
Material Subsidiary...................................... 5
Maturity................................................. 5
Non-Recourse Indebtedness................................ 5
Officer.................................................. 5
Officers' Certificate.................................... 5
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Opinion of Counsel...................................... 5
Outstanding............................................. 5
Paying Agent............................................ 6
Person.................................................. 6
Place of Payment........................................ 6
Registrar............................................... 6
Regular Record Date..................................... 6
SEC..................................................... 7
Securities.............................................. 7
Security Register....................................... 7
Senior Indebtedness..................................... 7
Special Record Date..................................... 7
Stated Maturity......................................... 8
Subsidiary.............................................. 8
Successor............................................... 8
TIA..................................................... 8
Trustee................................................. 8
Trust Officer........................................... 8
U.S. Government Obligations............................. 8
Section 1.03 Incorporation by Reference of TIA....................... 9
ARTICLE 2 SECURITY FORMS................................................. 9
Section 2.01 Forms Generally......................................... 9
Section 2.02 Form of Legend for Global Securities.................... 9
Section 2.03 Form of Trustee's Certificate of Authentication......... 10
ARTICLE 3 THE SECURITIES................................................. 11
Section 3.01 Amount Unlimited; Issuable in Series.................... 11
Section 3.02 Denominations........................................... 13
Section 3.03 Execution, Authentication, Delivery and Dating.......... 14
Section 3.04 Temporary Securities.................................... 16
Section 3.05 Registration, Registration of Transfer and Exchange..... 16
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities........ 20
Section 3.07 Payment of Interest; Interest Rights Preserved.......... 21
Section 3.08 Persons Deemed Owners................................... 22
Section 3.09 Cancellation............................................ 22
Section 3.10 Computation of Interest................................. 23
ARTICLE 4 REDEMPTION..................................................... 23
Section 4.01 Applicability of Article................................ 23
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Section 4.02 Election to Redeem; Notice to Trustee.................. 23
Section 4.03 Selection of Securities to Be Redeemed................. 23
Section 4.04 Notices to Holders..................................... 24
Section 4.05 Effect of Notice of Redemption......................... 24
Section 4.06 Deposit of Redemption Price............................ 25
Section 4.07 Securities Redeemed in Part............................ 25
Section 4.08 Optional Redemption.................................... 25
ARTICLE 5 SINKING FUNDS.................................................. 26
Section 5.01 Applicability of Article............................... 26
Section 5.02 Satisfaction of Sinking Fund Payments with Securities.. 26
Section 5.03 Redemption of Securities for Sinking Fund.............. 26
ARTICLE 6 COVENANTS...................................................... 28
Section 6.01 Payment of Securities.................................. 28
Section 6.02 Maintenance of Office or Agency........................ 28
Section 6.03 SEC Reports; Financial Statements...................... 29
Section 6.04 Money for Security Payments to Be Held in Trust........ 29
Section 6.05 Compliance Certificate................................. 31
Section 6.06 Corporate Existence, etc............................... 31
Section 6.07 Payment of Taxes and Other Claims...................... 31
Section 6.08 Insurance.............................................. 32
Section 6.09 Stay, Extension and Usury Laws......................... 32
Section 6.10 Maintenance of Properties.............................. 32
ARTICLE 7 SUCCESSORS..................................................... 32
Section 7.01 Limitations on Mergers and Consolidations.............. 32
Section 7.02 Successor Corporation Substituted...................... 33
ARTICLE 8 DEFAULTS AND REMEDIES.......................................... 34
Section 8.01 Events of Default...................................... 34
Section 8.02 Acceleration........................................... 36
Section 8.03 Other Remedies......................................... 36
Section 8.04 Waiver of Past Defaults and Compliance With Indenture
Provisions............................................. 37
Section 8.05 Control by Majority.................................... 37
Section 8.06 Limitations on Suits................................... 37
Section 8.07 Rights of Holders to Receive Payment................... 38
Section 8.08 Collection Suit by Trustee............................. 38
Section 8.09 Trustee May File Proofs of Claim....................... 38
Section 8.10 Priorities............................................. 39
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Section 8.11 Undertaking for Costs.................................. 39
Section 8.12 Restoration of Rights and Remedies..................... 40
ARTICLE 9 TRUSTEE........................................................ 40
Section 9.01 Duties of Trustee...................................... 40
Section 9.02 Rights of Trustee...................................... 41
Section 9.03 Individual Rights of Trustee........................... 42
Section 9.04 Trustee's Disclaimer................................... 42
Section 9.05 Notice of Defaults..................................... 43
Section 9.06 Reports by Trustee to Holders.......................... 43
Section 9.07 Compensation and Indemnity............................. 43
Section 9.08 Replacement of Trustee................................. 44
Section 9.09 Successor Trustee by Merger, etc....................... 45
Section 9.10 Eligibility; Disqualification.......................... 45
Section 9.11 Preferential Collection of Claims Against Company...... 46
ARTICLE 10 HOLDERS' LISTS................................................. 46
Section 10.01 Company to Furnish Trustee Names and Addresses of
Holders................................................ 46
Section 10.02 Preservation of Information............................ 46
ARTICLE 11 DEFEASANCE AND COVENANT DEFEASANCE............................. 47
Section 11.01 Company's Option to Effect Defeasance or Covenant
Defeasance............................................. 47
Section 11.02 Defeasance and Discharge............................... 47
Section 11.03 Covenant Defeasance.................................... 47
Section 11.04 Conditions to Defeasance or Covenant Defeasance........ 48
Section 11.05 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions....... 50
Section 11.06 Reinstatement.......................................... 51
ARTICLE 12 SATISFACTION AND DISCHARGE..................................... 51
Section 12.01 Satisfaction and Discharge of Indenture................ 51
Section 12.02 Application of Trust Money............................. 52
ARTICLE 13 SUPPLEMENTAL INDENTURES........................................ 53
Section 13.01 Supplemental Indentures Without Consent of Holders..... 53
Section 13.02 Supplemental Indentures With Consent of Holders........ 54
Section 13.03 Compliance With TIA.................................... 56
Section 13.04 Revocation and Effect of Consents...................... 56
Section 13.05 Notation on or Exchange of Securities.................. 57
Section 13.06 Trustee to Sign Amendments, etc........................ 57
Section 13.07 Subordination Unimpaired............................... 57
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ARTICLE 14 MISCELLANEOUS.................................................. 57
Section 14.01 TIA Controls........................................... 57
Section 14.02 Notices................................................ 57
Section 14.03 Communication by Holders With Other Holders............ 59
Section 14.04 Action by Securityholders.............................. 59
Section 14.05 Proof of Execution of Instruments and Holding
of Securities.......................................... 60
Section 14.06 Obligation to Disclose Beneficial Ownership
of Securities.......................................... 60
Section 14.07 Certificate and Opinion as to Conditions Precedent..... 60
Section 14.08 Statements Required in Certificate or Opinion.......... 61
Section 14.09 Rules by Trustee and Agents............................ 62
Section 14.10 No Recourse Against Others............................. 62
Section 14.11 Governing Law.......................................... 62
Section 14.12 No Adverse Interpretation of Other Agreements.......... 62
Section 14.13 Successors............................................. 62
Section 14.14 Severability........................................... 63
Section 14.15 Counterpart Originals.................................. 63
Section 14.16 Trustee as Paying Agent and Registrar.................. 63
Section 14.17 Table of Contents, Headings, etc....................... 63
Section 14.18 Benefits of Indenture.................................. 63
Section 14.19 Acceptance of Trust.................................... 63
ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES.............................. 64
Section 15.01 Purposes of Meetings................................... 64
Section 15.02 Call of Meetings by Trustee............................ 64
Section 15.03 Call of Meetings by Company or Securityholders......... 64
Section 15.04 Person Entitled to Vote at Meeting..................... 65
Section 15.05 Regulations for Meeting................................ 65
ARTICLE 16 SUBORDINATION; SENIORITY....................................... 66
Section 16.01 Securities Subordinated to Senior Indebtedness......... 66
Section 16.02 Company Not To Make Payments with Respect to
Securities in Certain Circumstances.................... 66
Section 16.03 Subrogation of Securities.............................. 68
Section 16.04 Authorization by Holders............................... 69
Section 16.05 Notices to Trustee..................................... 69
Section 16.06 Trustee's Relation to Senior Indebtedness.............. 71
Section 16.07 No Impairment of Subordination......................... 71
Section 16.08 Article 16 Not to Prevent Events of Default............ 71
Section 16.09 Paying Agents Other Than the Trustee................... 71
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INDENTURE, dated as of _______ __, 199_, between U.S. Home
Corporation, a Delaware corporation, and IBJ Xxxxxxxx Bank & Trust Company, a
banking organization organized under the laws of New York, as trustee.
RECITALS OF THE COMPANY
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 or other evidences of indebtedness (the
"Securities") to be issued in one or more series as provided herein.
B. All things necessary have been done to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company
and to make this Indenture a valid agreement of the Company.
NOW, THEREFORE, in consideration of the above premises and the
acquisition of the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 RULES OF CONSTRUCTION
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(c) 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 hereof;
(d) "or" is not exclusive; and
(e) provisions apply to successive events and transactions.
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SECTION 1.02 DEFINITIONS
Capitalized terms used herein will have the following
respective meanings when used herein:
"Affiliate" of any Person means any Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such Person. For purposes of this Indenture, each executive
officer and director of the Company will be an Affiliate of the Company. In
addition, for purposes of this Indenture, 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.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means title 11 of the United States Code, as
amended, or any similar federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of a Person
or any authorized committee of the board of directors of such Person.
"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" means any day other than a Legal Holiday.
"Capital Stock" of any Person means any and all shares, rights
to purchase, warrants or options (whether or not currently exercisable),
participations, or other equivalents of or interests in (however designated) the
equity (which includes, but is not limited to, common stock, preferred stock and
partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Cash Equivalents" means any of the following, to the extent
owned by the Company, free and clear of all liens and having a maturity of not
greater than 90 days from the date of issuance thereof: (i) readily marketable
direct obligations of the United States or any agency or instrumentality thereof
or obligations unconditionally guaranteed by the full faith and credit of the
United States, (ii) insured certificates of deposit of or time deposits with any
commercial bank that (a) is a member of the Federal Reserve System, (b) issues
(or the parent of which issues) commercial paper rated as described in clause
(iii) below, (c) is organized under the laws of the United States or any State
thereof and (d) has combined capital and surplus of at least $1,000,000,000 or
(iii) commercial paper in an aggregate amount of no more than $5,000,000 per
issuer outstanding at any time, issued by any corporation organized under the
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laws of any State of the United States or the District of Columbia that is not
an Affiliate of the Company and rated at least "Prime-1" (or the then equivalent
grade) by Xxxxx'x Investor Service, Inc. or "A-1" (or the then equivalent grade)
by Standard & Poor's Corporation.
"Common Equity" of any Person means all Capital Stock of such
Person that is generally entitled (i) to vote in the election of directors of
such Person, or (ii) if such Person is not a corporation, to vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means U.S. Home Corporation, a Delaware corporation,
and any successor thereof.
"Company Request or Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President, its Senior Vice President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office of the Trustee" will be at the address
of the Trustee specified in Section 14.02 hereof or such other address as the
Trustee may give notice to the Company.
"Covenant Defeasance" has the meaning set forth in Section
11.03 hereof.
"Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 3.07
hereof.
"Defeasance" has the meaning set forth in Section 11.02
hereof.
"Defeasible Series" has the meaning set forth in Section 11.01
hereof.
"Depository" 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
Depository for such Securities as contemplated by Section 3.01.
"Designated Senior Indebtedness" means (i) Senior Indebtedness
permitted to be incurred pursuant to this Indenture under or in respect of an
institutional credit agreement, including the Existing Credit Facility, and (ii)
any other Senior Indebtedness permitted to be incurred pursuant to this
Indenture the principal amount of which is $25,000,000 or more.
"DTC" has the meaning set forth in Section 2.02 hereof.
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"Event of Default" has the meaning set forth in Section
8.01(a) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect on the Issue Date
of the Securities of any series.
"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 Depository for such Securities or a nominee
thereof.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the TIA that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 3.01 hereof upon receipt by the Trustee
of an Opinion of Counsel in accordance with Section 3.03 hereof.
"Interest Payment Date", when used with respect to a Security
of any series, means the Stated Maturity of an installment of interest on such
Security.
"Issue Date" means the date of original issuance of the
Securities of each series established pursuant to Section 3.01 hereof.
"Legal Holiday" means Saturday, Sunday or a day on which
banking institutions in New York, New York or at a Place of Payment are
authorized or obligated by law, regulation or executive order to remain closed.
If a payment date is a Legal Holiday at a Place of Payment, payment shall be
made at that place on the next succeeding day that is not a Legal Holiday and no
interest shall accrue for the intervening period.
"Material Subsidiary" has the meaning set forth in the
Indenture, dated as of June 21, 1993, between the Company and IBJ Xxxxxxxx Bank
& Trust Company, as trustee, relating to the Company's 9 3/4% Senior Notes due
2003 as in effect on the date hereof.
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"Maturity", when used with respect to a Security of any
series, means the date on which the principal of such Security or an installment
of principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Non-Recourse Indebtedness" has the meaning set forth in the
Indenture, dated as of June 21, 1993, between the Company and IBJ Xxxxxxxx Bank
& Trust Company, as trustee, relating to the Company's 9 3/4% Senior Notes due
2003 as in effect on the date hereof.
"Officer" means the Chairman of the Board, the President, the
Senior Vice President, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice President of a Person.
"Officers' Certificate" means a certificate signed by two
Officers, one of whom must be the Person's Chief Executive Officer (or Co-Chief
Executive Officer), Chief Operating Officer, Chief Financial Officer or Chief
Accounting Officer.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which the Defeasance has been effected
pursuant to Section 11.02 hereof; and
(iv) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities has 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
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such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of a Security denominated in one or more foreign currencies or currency
units shall be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 3.01 hereof on the Issue Date of such Security, of the
principal amount of such Security, and (b) Securities owned by the Company or
any other obligor of the Securities or any Subsidiary of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Subsidiary of
the Company or of such other obligor.
"Paying Agent" means any Person, including the Company,
authorized by the Company to pay the principal of or any interest on any
Securities of any series.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, incorporated or unincorporated association,
joint stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or other entity of any kind.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and interest on
the Securities of that series are payable as specified as contemplated by
Section 3.01 hereof.
"Registrar" has the meaning set forth in Section 3.05 hereof.
"Regular Record Date" for the interest payable on any Security
on any Interest Payment Date means the date specified for that purpose as
contemplated by Section 3.01 hereof.
"SEC" means the Securities and Exchange Commission, and any
successor thereto.
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"Securities" has the meaning set forth in the first recital of
this Indenture and more particularly means any securities of any series
authenticated and delivered under this Indenture.
"Security Register" has the meaning set forth in Section 3.05
hereof.
"Senior Indebtedness" means the principal of (premium, if any)
and interest on (including, without limitation, interest accruing subsequent to
the filing of a petition under applicable Bankruptcy Law or the appointment of a
Custodian), (i) any and all indebtedness and obligations of the Company
(including indebtedness of others guaranteed by the Company), whether or not
contingent and whether or not outstanding on the Issue Date of the Securities of
any series or thereafter created, incurred or assumed, including, without
limitation, all charges, fees, expenses (including, without limitation,
reasonable attorneys' fees and expenses and other amounts incurred by or owing
to holders of such indebtedness), which (a) is for money borrowed, (b) is
evidenced by any bond, note, debenture or similar instrument, (c) represents the
unpaid balance on the purchase price of any property, business or asset of any
kind, (d) is an obligation of the Company as lessee under any and all leases of
property, equipment or other assets required to be capitalized on the balance
sheet of the lessee under GAAP, (e) is a reimbursement obligation of the Company
with respect to letters of credit, (f) is an obligation of the Company with
respect to an interest swap obligation or a foreign exchange agreement or (g) is
an obligation of another secured by a lien to which any of the properties or
assets (including, without limitation, leasehold interests and any other
tangible or intangible property rights) of the Company are subject, whether or
not the obligation secured thereby will have been assumed by the Company or will
otherwise be the Company's legal liability and (ii) any deferrals, amendments,
renewals, extensions, modifications and refundings of any indebtedness or
obligations of the types referred to above; provided that Senior Indebtedness
will not include (A) (x) the Securities of any series or (y) the Company's
4-7/8% Convertible Subordinated Debentures due 2005, (B) any indebtedness or
obligation of the Company (or the instrument creating or evidencing it) which
expressly provides that such indebtedness is not superior in right of payment to
the Securities of any series or which expressly provides that such indebtedness
is subordinate in right of payment to all other indebtedness of the Company
(including the Securities of any series), (C) any indebtedness or obligation of
the Company to any of its Subsidiaries and (D) any indebtedness or obligation
incurred by the Company in connection with the purchase of assets, materials or
services in the ordinary course of business and which constitutes a trade
payable.
"Special Record Date" for the payment of any Defaulted
Interest on any Security means a date fixed by the Trustee pursuant to Section
3.07 hereof.
"Stated Maturity", when used with respect to any Security of
any series or any installment of principal thereof or interest thereon, means
the date specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is due and payable.
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"Subsidiary" of any Person means (i) any corporation of which
at least a majority of the aggregate voting power of all classes of the Common
Equity is directly or indirectly beneficially owned by such Person, and (ii) any
entity other than a corporation of which such Person directly or indirectly
beneficially owns at least a majority of the Common Equity.
"Successor" has the meaning set forth in Section 7.01(a)
hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
"Trust Officer" means any Senior Vice President, Vice
President, Assistant Vice President, Assistant Secretary or Assistant Treasurer
of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"U.S. Government Obligations" means (i) any security that is
(a) a direct obligation of the United States for the payment of which the full
faith and credit of the United States is pledged or (b) an obligation of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States, which, in either case (a) or
(b), is not callable or redeemable at the option of the issuer thereof, and (ii)
any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any U.S.
Government Obligation specified in clause (i) and 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.
SECTION 1.03 INCORPORATION BY REFERENCE OF TIA
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
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ARTICLE 2
SECURITY FORMS
SECTION 2.01 FORMS GENERALLY
Each Security and Global Security issued pursuant to this
Indenture shall be in substantially the form established by or pursuant to an
Officers' Certificate or a Board Resolution or in one or more indentures
supplemental hereto, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by or pursuant
to this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistent herewith, be determined by the
Officers executing such Security as evidenced by their execution of such
Security. If temporary Securities of any series are issued as Global Securities
as permitted by Section 3.04 hereof, the form thereof shall also be established
as provided in the previous sentence. If the form of Securities of any series is
established by action taken pursuant to an Officers' Certificate or a Board
Resolution, a copy thereof shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 3.03 hereof for the
authentication and delivery of such Securities. If all of the Securities of any
series established by action taken pursuant to an Officers' Certificate or a
Board Resolution are not to be issued at one time, it shall not be necessary to
deliver a copy thereof at the time of issuance of each Security of such series,
but such Officers' Certificate or Board Resolution shall be delivered at or
prior to the time of issuance of the first Security of such series.
Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, all as determined by the Officers of the Company executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02 FORM OF LEGEND FOR GLOBAL SECURITIES
Every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY
OR A NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN SUCH LIMITED CIRCUMSTANCES. EVERY SECURITY DELIVERED UPON REGISTRATION OF
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TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS GLOBAL SECURITY SHALL BE A
GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS TO BE MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
SECTION 2.03 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[Name of Trustee]
-----------------------------------
As Trustee
By.................................
Authorized Officer
ARTICLE 3
THE SECURITIES
SECTION 3.01 AMOUNT UNLIMITED; ISSUABLE IN SERIES
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series and the
Securities of each such series shall rank equally and pari passu with the
Securities of each other series, but all Securities issued hereunder shall be
subordinated and junior in right of payment, to the extent and in the manner set
forth in Article 16 to all Senior Indebtedness of the Company. There shall be
established in or pursuant to a Board Resolution and, set forth, or determined
in the manner provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, which, in each case, shall be deemed
incorporated herein by this reference and made a part hereof but only with
respect to the series of Securities established pursuant to such Board
Resolution, Officer's Certificate or supplemental indenture, prior to the
issuance of Securities of any series the following:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 4.07 or
13.05 hereof and except for any Securities which, pursuant to Section
3.03 hereof, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security is registered at the close of business on the Regular Record
Date for such interest;
(4) the date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date, if any, for the interest payable on any
Security on any Interest Payment Date, or the method by which such date
or dates shall be determined, and the basis upon which interest shall
be calculated if other than on the basis of actual days elapsed over a
365 or 366-day year;
(6) the place or places, if any, other than or in addition to
New York, New York, where the principal of and interest on Securities
of the series shall be payable, any Securities of the series may be
surrendered for registration of transfer, Securities of the same series
may be surrendered for exchange and, if different from the location
specified in Section 14.02 hereof, the place or places
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where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(7) the period or periods within, the price or prices at and
the terms and conditions upon, which Securities of the series may be
redeemed or purchased, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or
repurchase 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 shall be
redeemed or repurchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and interest on any Securities of the
series shall be payable if other than the currency of the United States
and the manner of determining the equivalent thereof in the currency of
the United States for purposes of the definition of "Outstanding" in
Section 1.01 hereof;
(11) if the principal of 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
interest on Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(12) if the amount of payments of principal of or interest on
any Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(13) if other than the principal amount of the Securities of
any series, the portion of the principal amount of such Securities
which shall be payable upon declaration of acceleration of the Maturity
thereof;
(14) if applicable, that the Securities of the series shall
be defeasible as provided in Article 11 hereof;
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(15) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depository or Depositories for such
Global Security or Global Securities and any circumstances other than
those set forth in Section 3.05 hereof 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
Depository for such Global Security or a nominee thereof and in which
any such transfer may be registered;
(16) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of any series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(17) if other than the Trustee, the identity of each Paying
Agent and Registrar for the Securities of the series; and
(18) any other terms of the series.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy thereof shall be delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of the series.
SECTION 3.02 DENOMINATIONS
In the absence of any specified denomination with respect to
the Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Securities shall be executed on behalf of the Company by
two Officers, under its corporate seal reproduced thereon. The signature of any
of the Officers on the Securities may be manual or by facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such
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individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such an agent. An
authenticating agent has the same rights as an Agent to deal with the Company.
The Company shall pay the reasonable fees and expenses of any authenticating
agent.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Officers' Certificate or Board
Resolutions as permitted by Sections 2.01 and 3.01 hereof, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Sections 315(a) through 315(d)) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(1) if the form or forms of such Securities have been
established by or pursuant to Board Resolution or an Officers'
Certificate as permitted by Section 2.01 hereof, that such form or
forms have been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by
or pursuant to a Board Resolution or an Officers' Certificate as
permitted by Section 3.01 hereof, that such terms have been established
in conformity with the provisions of this Indenture; and
(3) that such Securities, when completed by appropriate
insertions and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued
by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute the legal, valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to general
equity principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such
Securities.
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Notwithstanding the provisions of Section 3.01 hereof and of
the preceding paragraph, if all of the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate or Board Resolution otherwise required pursuant to Section 3.01
hereof or the Company Order and Opinion of Counsel otherwise required pursuant
to such preceding paragraph at the time of issuance of each Security of such
series, but such documents shall be delivered at or prior to the time of
issuance of the first Security of such series. Notwithstanding the immediately
preceding sentence, any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that, as of the date of such request,
the statements made in the Opinion of Counsel delivered pursuant to this Section
3.03 shall be true and correct as if made on such date.
The Trustee shall have the right to refuse to authenticate and
deliver such Securities if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken or if the Trustee in good faith by
its board of directors or trustees, executive committee or a trust committee of
directors or trustees and/or officers of the Trustee shall determine that such
action would expose Trustee to personal liability to existing Holders or would
adversely affect the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 3.09 hereof together with a Company Order (which need not comply with
Section 14.08 hereof and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued or sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04 TEMPORARY SECURITIES
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, and with such appropriate insertions, omissions, substitutions and
other
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variations as the Officers executing such Securities may determine, as evidenced
by their execution of such Securities.
Every temporary Security shall be executed by the Company and
authenticated by the Trustee and registered by the Registrar, upon the same
conditions, and with like effect, as a definitive Security.
If temporary Securities (other than a Global Security) of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
a like aggregate principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 3.05 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
(a) The Company shall maintain a register of the Securities
of each series (the "Security Register") in an office or agency of the Company
in a Place of Payment (the "Registrar") where, subject to Section 3.05(c) hereof
and such reasonable regulations as the Company may prescribe, Securities may be
presented for registration of transfer or for exchange. The Company may appoint
one or more co-Registrars. The term "Registrar" includes any co-Registrar. The
Company may change any Registrar without notice to any Holder. The Company or
any of its Subsidiaries may act as Registrar.
Subject to Section 3.05(c), upon surrender for registration of
transfer of any Security of any series at the office or agency of the Company in
a Place of Payment for that series, the Company shall execute, and the Trustee
shall 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.
Subject to Section 3.05(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, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 4.07 or 13.05 hereof not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
4.08 hereof and ending at the close of business on the day of such mailing, or
(ii) to register the transfer or exchange of any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to issue, register the transfer of or exchange
any Security which has been surrendered for repayment at the option of the
Holder, except the portion, if any, of such Security not to be so repaid.
(b) In case the Company, pursuant to Article 7 hereof, will
be consolidated or merged with or into any other Person or will convey, transfer
or lease substantially all of its properties and assets to any Person, and the
Successor resulting from such consolidation, or surviving such merger, or into
which the Company will have been merged, or the Person which will have received
a conveyance, transfer or lease as aforesaid, will have executed an indenture
supplemental hereto with the Trustee pursuant to Article 7 hereof, any of the
Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer or lease may, from time to time, at the request of the
Successor, be exchanged for other Securities executed in the name of the
Successor with such changes in phraseology and form as may be appropriate, but
otherwise in substance and of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon receipt of an
Officers' Certificate from the Successor, will authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities will at any time be authenticated and delivered in any new name of a
Successor pursuant to this Section 3.05(b) hereof in exchange or substitution
for or upon registration of transfer of any Securities, such Successor, at the
option of the Holders but without
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expense to them, will provide for the exchange of all Securities at the time
outstanding for Securities authenticated and delivered in such new name.
(c) The Company will execute and the Trustee will, in
accordance with this Section 3.05(c) for so long as the Securities of any series
are to be issued in whole or in part in the form of one or more Global
Securities, authenticate and deliver one or more Global Securities that will (i)
represent and will be denominated in an amount equal to the aggregate
outstanding principal amount of the Securities to be represented by such Global
Security or Securities, (ii) be registered in the name of the Depository for
such Global Security or Securities or the nominee of such Depository, (iii) be
delivered by the Trustee to such Depository or pursuant to such Depository's
instructions and (iv) bear the legends set forth in Section 2.02 hereof.
Each Depository appointed in accordance with Section 3.01
hereof for a Global Security must, at the time of its appointment and at all
times while it serves as Depository, be a clearing agency registered under the
Exchange Act, and any other applicable statute or regulation.
Notwithstanding any other provision of this Section 3.05(c),
unless and until it is exchanged in whole for Securities in definitive form of
any series, a Global Security representing all or a portion of the Securities of
any series may not be transferred except as a whole by the Depository to a
nominee of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by such Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
If at any time the Depository is unwilling or unable to
continue as Depository or if at any time the Depository will no longer be
eligible to act as such under this Section 3.05(c), the Company will appoint a
successor Depository. If (i) a successor Depository is not appointed by the
Company within 90 days after the Company receives notice from the Depository or
otherwise becomes aware of such unwillingness, inability or ineligibility or
(ii) an Event of Default has occurred and is continuing, the Company will
execute and deliver to the Trustee as promptly as practicable Securities in
definitive form, together with an Officers' Certificate relating to the
authentication and delivery of such Securities, and the Trustee, as promptly as
practicable after the receipt of such Securities and Officers' Certificate, will
authenticate and deliver Securities in definitive form in an aggregate principal
amount equal to the principal amount of, and containing terms and provisions
identical to, the Global Security or Securities in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
Global Securities will no longer be represented by such Global Security or
Securities. In such event, the Company will execute and deliver to the Trustee
Securities in definitive form, together with an Officers' Certificate relating
to the authentication and delivery of Securities in definitive form, and the
Trustee, as promptly as
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practicable after the receipt of such Securities in definitive form and
Officers' Certificate, will authenticate and deliver Securities in definitive
form in an aggregate principal amount equal to the principal amount of, and
containing terms and provisions identical to, the Global Security or Securities
in exchange for such Global Security or Securities.
Upon the exchange of a Global Security in whole or in part for
Securities in definitive form, such Global Security shall be cancelled by the
Trustee. Securities in definitive form issued in exchange for a Global Security
pursuant to this Section 3.05(c) will be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions from its
direct or indirect participants or otherwise, will instruct the Trustee in
writing. The Trustee will deliver such Securities in definitive form to the
Persons in whose names such Securities are so registered or as it may otherwise
be directed by the Depository. Upon the exchange of less than the entire
principal amount of a Global Security for Securities in definitive form, the
Company will also execute, and the Trustee, upon receipt of an Officers'
Certificate will also authenticate and deliver, a new Global Security in
aggregate principal amount equal to the difference between the principal amount
of the surrendered Global Security and the aggregate principal amount of
Securities in definitive form issuable upon such exchange.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Securities in definitive form in authorized denominations.
If a Security in definitive form is issued in exchange for any
portion of a Global Security after the close of business at the office or agency
where such exchange occurs on or after any Regular Record Date for an Interest
Payment Date and before the opening of business at such office or agency on the
next Interest Payment Date, interest will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Security in definitive form, but will be payable on such Interest Payment
Date only to the Person to whom interest in respect of such portion of such
Global Security is payable in accordance with the provisions of this Indenture.
None of the Company, the Trustee, any agent of the Trustee,
any Paying Agent or the Registrar will have any responsibility or liability for
any aspect of the Depository's records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any of the Depository's records relating to such
beneficial ownership interests.
SECTION 3.06 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like principal amount and
bearing a number not contemporaneously outstanding.
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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 and to save each
of them and any agent of either of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon receipt of a Company Order
the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost
or stolen Security, a new Security of the same series and of like principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, instruct the Paying Agent to pay such
Security.
Upon the issuance of any new Security under this Section 3.06,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section 3.06 in lieu of any mutilated, destroyed, lost or stolen Security, shall
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 shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Except as otherwise provided as contemplated by Section 3.01
hereof 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 shall be paid to the Person in whose name that Security is registered at
the close of business on the Regular Record Date for such interest at the office
or agency of the Company maintained for such purpose pursuant to Section 6.02
hereof.
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
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable,
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interest thereon herein collectively called "Defaulted Interest") may be paid by
the Company, 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 to the Persons in whose names the Securities of such series
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
(except as otherwise specified pursuant to Section 3.01 hereof for the
Securities of such series) equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon, the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class postage prepaid, to each Holder of
Securities of such series at its address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date and
notice shall be considered given whether or not received by the Holder.
If notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor have been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (ii).
(ii) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of the securities exchange on which
such Securities may be listed, if any, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
The provisions of this Section 3.07 may be applicable to any
series of Securities pursuant to Section 3.01 hereof (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01
hereof).
Subject to the foregoing provisions of this Section 3.07 and
Section 3.05 hereof, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or
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in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08 PERSONS DEEMED OWNERS
Subject to Section 3.05(c), 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 (except as contemplated by Section 3.05 hereof and subject to
Section 3.07 hereof) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or Trustee shall be affected by notice
to the contrary.
SECTION 3.09 CANCELLATION
All Securities surrendered for payment, redemption, repayment
at the option of the Holder, if applicable, registration of transfer or exchange
or for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall 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 shall be accompanied by an Officers' Certificate authorizing such
cancellation, and shall be promptly cancelled by the Trustee. If the Company
shall so acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be disposed of as directed by a Company Order.
SECTION 3.10 COMPUTATION OF INTEREST
Except as otherwise specified as contemplated by Section 3.01
hereof for Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 365 or 366-day year.
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ARTICLE 4
REDEMPTION
SECTION 4.01 APPLICABILITY OF ARTICLE
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and in
accordance with this Article 4.
SECTION 4.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE
In the event the Company elects to redeem Securities of any
series pursuant to the optional redemption provisions of Section 4.08 hereof, it
will notify the Trustee in writing, at least 30 days but not more than 60 days
before a redemption date, of the redemption date and the principal amount of
Securities of a series to be redeemed.
SECTION 4.03 SELECTION OF SECURITIES TO BE REDEEMED
(a) In the event less than all of the Outstanding Securities
of a series are to be redeemed, the Trustee will select the Securities of such
series to be redeemed pro rata or by lot or by any other method the Trustee
deems fair and appropriate but only in integral multiples of $1,000. The
particular Securities of a series to be redeemed will be selected, unless
otherwise provided herein, not less than 20 nor more than 60 days prior to the
redemption date by the Trustee from the Outstanding Securities of such series
not previously called for redemption.
(b) The Trustee will promptly notify the Company in writing
of the Securities of such series selected for redemption and, in the case of any
Security of a series selected for partial redemption, the principal amount
thereof to be redeemed but not in integral multiples of less than $1,000.
Provisions of this Indenture that apply to Securities of a series called for
redemption also apply to portions of Securities of a series called for
redemption.
SECTION 4.04 NOTICES TO HOLDERS
(a) At least 15 days but not more than 60 days before a
redemption date, the Company will mail a notice to each Holder whose Securities
are to be redeemed.
(b) The notice will identify the Securities of the series to
be redeemed and will state:
(i) the redemption date;
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(ii) the redemption price;
(iii) if any Outstanding Security of any series is being
redeemed in part, the portion of the principal amount of such Security
to be redeemed and that, after the redemption date, upon surrender of
such Security, a new Security or Securities in principal amount equal
to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be
surrendered to the Paying Agent at the address specified in such notice
to collect the redemption price;
(vi) that interest on Securities called for redemption
ceases to accrue on and after the redemption date;
(vii) that the redemption is for a sinking fund, if such
is the case;
(viii) the aggregate principal amount of Securities that
are being redeemed; and
(ix) that funds for the redemption price shall be
deposited in accordance with Section 4.06 hereof, failing which the
notice shall be deemed cancelled.
(c) At the Company's written request, the Trustee will give
the notice required in this Section 4.04 in the Company's name and at its
expense.
SECTION 4.05 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed, Outstanding Securities of
such series called for redemption become due and payable on the redemption date
at the redemption price and, subject to Section 4.06(b) hereof, interest on such
Securities ceases to accrue on and after the redemption date.
SECTION 4.06 DEPOSIT OF REDEMPTION PRICE
(a) At least one Business Day prior to the redemption date,
the Company will deposit with the Trustee or with the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 6.04 hereof) money sufficient to pay the redemption price
of, and accrued and previously unpaid interest on, all Securities of such series
to be redeemed on that date, and the Trustee will remit the redemption price to
Holders entitled thereto. The Trustee or the Paying Agent will return to the
Company any money not required for that purpose.
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(b) If the Company complies with Section 4.06(a) hereof,
interest on the Securities of such series or portions thereof to be redeemed
(whether or not such Securities are presented for payment) will cease to accrue
on the applicable redemption date. If any Security of such series called for
redemption is not so paid upon surrender because of the failure of the Company
to comply with Section 4.06(a) hereof, then interest will be paid on the unpaid
principal from the last Interest Payment Date until such principal is paid in
full at the rate determined pursuant to Section 3.01 hereof for the Securities
of such series.
SECTION 4.07 SECURITIES REDEEMED IN PART
Upon surrender of a Security of such series that is redeemed
in part, the Company will issue and the Trustee will authenticate for the Holder
at the expense of the Company a new Security of the same series, maturity date,
interest rate and Issue Date equal in principal amount to the unredeemed portion
of the Security of such series surrendered.
SECTION 4.08 OPTIONAL REDEMPTION
The Company may redeem all or any portion of the Outstanding
Securities of any series at any time and from time to time that are redeemable
before their maturity except as otherwise specified as contemplated by Section
3.01 hereof for Securities of such series at the redemption prices together in
each case, with accrued interest, if any, to the date fixed for redemption,
determined pursuant to Section 3.01 hereof.
ARTICLE 5
SINKING FUNDS
SECTION 5.01 APPLICABILITY OF ARTICLE
If so provided as contemplated by Section 3.01 hereof for
Securities of any series, retirements of Securities of any series pursuant to
any sinking fund shall be made in accordance with their terms and in accordance
with this Article 5.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 5.02 hereof. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
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SECTION 5.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES
Subject to Section 5.03 hereof, in lieu of making all or any
part of any mandatory sinking fund payment with respect to any Securities of a
series in cash, the Company may at its option (i) deliver to the Trustee
Outstanding Securities of a series (other than any previously called for
redemption) theretofore purchased or acquired by the Company and/or (ii) receive
credit for the principal amount of Securities of a series which have been
previously delivered to the Trustee by the Company or for Securities of such
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 mandatory sinking fund payment with
respect to the Securities of the same series required to be made pursuant to the
terms of such Securities as provided for by the terms of such series; provided
that such Securities have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 5.03 REDEMPTION OF SECURITIES FOR SINKING FUND
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering or crediting Securities
of that series pursuant to Section 5.02 hereof (which Securities will, if not
previously delivered, accompany such Officers' Certificate) and whether the
Company intends to exercise its right to make a permitted optional sinking fund
payment with respect to such series. Such Officers' Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the Company
to deliver such Officers' Certificate, the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 5.02 hereof and without the right to
make any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 4.03 hereof 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 4.04 hereof. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Article 4 hereof.
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Prior to any sinking fund payment date, the Company shall pay
to the Trustee or a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 6.04 hereof) in cash a
sum equal to any interest that will accrue to the date fixed for redemption of
Securities or portion thereof to be redeemed on such sinking fund payment date
pursuant to this Section 5.03.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000, the Company shall not
instruct the Trustee to give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series, by
public or private purchase as negotiated by the Company, in the open market or
otherwise, at a purchase price for such Securities (excluding accrued interest
and brokerage commissions, for which the Trustee or any Paying Agent will be
reimbursed by the Company) not in excess of the principal amount thereof.
ARTICLE 6
COVENANTS
SECTION 6.01 PAYMENT OF SECURITIES
(a) The Company will pay the principal of, and interest on,
the Securities of each series on the dates and in the manner provided herein and
in the Securities. In the event the Company is not the Paying Agent, principal
and interest will be considered paid on the date due if the Trustee or Paying
Agent holds on that date money deposited by the Company designated for and
sufficient to pay all principal and interest then due. In the event the Company
is the Paying Agent, principal and interest will be considered paid on the date
actual payment is mailed, or otherwise sent or given, to the Holders entitled
to such payments.
(b) The Company will pay interest on overdue principal at the
applicable interest rate on the Securities of each series as determined in
accordance with Section 3.01 hereof.
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SECTION 6.02 MAINTENANCE OF OFFICE OR AGENCY
(a) The Company will maintain in each Place of Payment for
any series of Securities, in New York, New York, an office or agency (which may
be an office of the Trustee or the Registrar) where Securities of such series
may be presented or surrendered for payment, where Securities of that series may
be presented for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of such series and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company fails to maintain any such required office or
agency or fails to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Securities of each series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission will in any manner relieve the Company of its obligation to maintain
an office or agency in New York, New York 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.
(c) The Company hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Company in accordance with
this Section 6.02.
SECTION 6.03 SEC REPORTS; FINANCIAL STATEMENTS
(a) As long as more than 10 percent of the original principal
amount of the Securities of any series is Outstanding, the Company will (i)
remain subject to the requirements of Section 13 or 15(d) of the Exchange Act
whether or not it is required to do so by the provisions thereof and will file
with the SEC all periodic reports as may be required thereunder and (ii) file
with the SEC and the Trustee within 15 days after the Company is required to
file the same with the SEC, copies of the periodic reports which the Company may
be required to file with the SEC pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act. The Company will also make such reports available to the
Holders, prospective purchasers of the Securities of any such series, securities
analysts and broker-dealers upon their written request.
(b) In the event that (i) 10 percent or less of the original
principal amount of the Securities of any series is Outstanding and (ii) the
Company is not required to file with the SEC such reports and other information
referred to in Section 6.03(a) hereof, the Company will furnish to the Trustee
(A) within 120 days after the end of each fiscal year, annual reports containing
the information required to be contained in Items 1, 2, 3, 5, 6, 7, 8 and 9 of
the Annual Report on Form 10-K promulgated under the Exchange Act, or
substantially the same
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information required to be contained in comparable items of any successor form,
(B) within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, quarterly reports containing the information required to be
contained in the Quarterly Report on Form 10-Q promulgated under the Exchange
Act, or substantially the same information required to be contained in any
successor form and (C) promptly from the time after the occurrence of an event
which would be required to be reported in the Current Report on Form 8-K if the
Company was required to file such Report, such other reports containing
information required to be contained in the Current Report on Form 8-K
promulgated under the Exchange Act, or substantially the same information
required to be contained in any successor form.
(c) The Company will also comply with the other provisions of
TIA Section 314(a).
SECTION 6.04 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST
(a) In the event the Company will at any time act as its own
Paying Agent with respect to any series of Securities, it will, not less than
one Business Day before each due date of the principal of or interest on any of
the Securities of any series, segregate and hold in trust for the benefit of the
Holders entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums will be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure to so act.
(b) In the event the Company is not acting as Paying Agent
with respect to any series of Securities, the Company will, not less than one
Business Day before each due date of the principal of or interest on, any
Securities of any series, deposit with a Paying Agent a sum in same day funds
sufficient to pay the principal or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal or interest,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of such action or any failure to so act.
(c) In the event the Company is not acting as Paying Agent
with respect to any series of Securities, the Company will cause each Paying
Agent other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent will agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the
principal of or interest on Securities of such series in trust for the
benefit of the Holders of such series of Securities and the Trustee
entitled thereto until such sums will be paid to such Persons or
otherwise disposed of as herein provided;
(ii) give the Trustee notice of any Default by the
Company in the making of any payment of principal or interest;
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(iii) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent; and
(iv) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
(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 sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
(e) Except as provided in the Securities of any series, 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 interest on any Security of any
series and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such 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 New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
SECTION 6.05 COMPLIANCE CERTIFICATE
(a) The Company will deliver to the Trustee within 120 days after
the end of each fiscal year of the Company an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default that occurred
during such period. If they do know of a Default or an Event of Default, the
Officers' Certificate will describe the Default or Event of Default and the
action the Company is taking or proposes to take with respect thereto.
(b) The Company will give prompt written notice to the Trustee of
the occurrence of any Default or Event of Default.
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SECTION 6.06 CORPORATE EXISTENCE, ETC.
Subject to the provisions of Article 7 hereof, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and statutory), licenses
and franchises of the Company, except in such cases where a failure to do so
would not in the judgment of management have a material adverse effect on the
business, prospects, assets or financial condition of the Company and its
Subsidiaries taken as a whole and would not have a materially adverse impact on
the Holders of Securities of any series.
SECTION 6.07 PAYMENT OF TAXES AND OTHER CLAIMS
The Company will pay or discharge or cause to be paid or
discharged, before the same will become delinquent, (i) all taxes, assessments
and governmental charges levied or imposed upon the Company or upon the income,
profits or property of the Company other than any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which appropriate provision has been
made in accordance with GAAP and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company, in each case except to the extent the failure to do so would not have,
in the judgment of management, a material adverse effect on the Company and its
Subsidiaries taken as a whole.
SECTION 6.08 INSURANCE
The Company will maintain and will cause each of its Subsidiaries
to maintain (either in the name of the Company or in such Subsidiary's own name)
with third party insurance companies or pursuant to self-insurance, (i)
insurance on all their respective properties, (ii) public liability insurance
against claims for personal injury or death as a result of the use of any
products sold by it and (iii) insurance coverage against other business risks,
in each case, in at least such amounts and against at least such other risks
(and with such risk retention) as are usually and prudently insured against in
the same general area by companies engaged in the same or a similar business.
SECTION 6.09 STAY, EXTENSION AND USURY LAWS
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
Company's obligation to pay the Securities of each series, and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law insofar as such law applies to the Securities of each
series, and covenants that it will not, by resort to any such law, hinder, delay
or impede the execution of any
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power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law has been enacted.
SECTION 6.10 MAINTENANCE OF PROPERTIES
The Company will take reasonable action to maintain in appropriate
condition each of its principal properties which in the judgment of management
is essential to the business operations of the Company and its Subsidiaries
taken as a whole and the loss of which would have a material adverse affect on
the financial condition of the Company and its Subsidiaries taken as a whole.
Nothing contained in this Section 6.10 will prevent or restrict the sale,
abandonment or other disposition of any property which management deems
advisable.
ARTICLE 7
SUCCESSORS
SECTION 7.01 LIMITATIONS ON MERGERS AND CONSOLIDATIONS
(a) The Company will not consolidate or merge with or into, or
sell, lease, convey or otherwise dispose of all or substantially all of its
assets (including, without limitation, by way of liquidation or dissolution), or
assign any of its obligations hereunder or under the Securities of any series
(as an entirety or substantially an entirety in one transaction or series of
related transactions), to any Person unless: (i) the Person formed by or
surviving such consolidation or merger (if other than the Company), or to which
sale, lease, conveyance or other disposition or assignment will be made
(collectively, the "Successor"), is a solvent corporation or other legal entity
organized and existing under the laws of the United States or any state thereof
or the District of Columbia, and the Successor assumes by supplemental indenture
in a form reasonably satisfactory to the Trustee all of the obligations of the
Company under the Securities of any series and this Indenture, (ii) immediately
after giving effect to such transaction, no Default or Event of Default has
occurred and is continuing, and (iii) the Company will have delivered to the
Trustee prior to the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.
SECTION 7.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company or
any assignment of its obligations under this Indenture or the Securities of any
series in accordance with Section 7.01 hereof, upon assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment
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of the principal of and interest on all of the Securities of any series and the
due and punctual performance and observance of all the covenants and conditions
of this Indenture to be performed or observed by the Company, the Successor
formed by such consolidation or into or with which the Company is merged or to
which such sale, lease, conveyance or other disposition or assignment is made
will succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such Successor
has been named as the Company herein and such Successor may cause to be signed
and may issue in its own name or in the name of the Company, any or all
Securities of any series issuable hereunder and the predecessor Company, in the
case of a sale, lease, conveyance or other disposition or assignment, will be
released from all obligations under this Indenture and the Securities of any
series.
ARTICLE 8
DEFAULTS AND REMEDIES
SECTION 8.01 EVENTS OF DEFAULT
(a) "Event of Default", wherever used herein with respect to
Securities of any series, means any of the following events (whatever the reason
for such Event of Default and whether it will 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) the failure by the Company to pay interest on any Security
of that series when the same becomes due and payable and the continuance
of any such failure for a period of 30 days;
(ii) the failure by the Company to pay the principal of any
Security of that series when the same becomes due and payable at Maturity,
upon acceleration or otherwise;
(iii) the failure by the Company to make any sinking fund
payment when the same becomes due and payable by the terms of a Security
of that series and Article 5 hereof;
(iv) the failure by the Company to comply with any of its
agreements or covenants in, or provisions of, the Security of that series
or this Indenture (other than an agreement or covenant a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this
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Indenture solely for the benefit of a series of Securities other than that
series) and such failure continues for the period and after the notice
specified below;
(v) the acceleration of any indebtedness (other than
Non-Recourse Indebtedness) for borrowed money or guarantees thereof of the
Company or any of its Subsidiaries that has an outstanding principal
amount of $10,000,000 or more in the aggregate; provided that, in the
event any such acceleration is withdrawn or otherwise rescinded within a
period of five days after such acceleration by the holders of such
indebtedness, any Event of Default under this Section 8.01(a)(v) will be
deemed to be cured and any acceleration hereunder will be deemed withdrawn
or rescinded;
(vi) the failure by the Company or any of its Subsidiaries to
make any principal or interest payment in respect of indebtedness (other
than Non-Recourse Indebtedness) for borrowed money or guarantees thereof
of the Company or any of its Subsidiaries with an outstanding aggregate
amount of $10,000,000 or more within five days of such principal or
interest payment becoming due and payable (after giving effect to any
applicable grace period set forth in the documents governing such
indebtedness);
(vii) a final judgment or judgments that exceed $10,000,000 or
more in the aggregate, for the payment of money, having been entered by a
court or courts of competent jurisdiction against the Company or any of
its Subsidiaries and such judgment or judgments is not satisfied, stayed,
annulled or rescinded within 60 days of being entered;
(viii) the Company or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(ix) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Material
Subsidiary as debtor in an involuntary case,
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(B) appoints a Custodian of the Company or any Material
Subsidiary or a Custodian for all or substantially all of the
property of the Company or any Material Subsidiary, or
(C) orders the liquidation of the Company or any
Material Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; or
(x) any other Event of Default provided with respect to
Securities of that series.
(b) The Trustee will not be deemed to know of a Default unless a
Trust Officer has actual knowledge of such Default or receives written notice of
such Default with specific reference to such Default.
(c) A Default under Section 8.01(a)(iv) hereof is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25
percent in aggregate principal amount of the Outstanding Securities of all
series affected thereby notify the Company and the Trustee, of the Default and
the Company does not cure the Default within 60 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default." If such a Default is cured
within such time period, it ceases.
SECTION 8.02 ACCELERATION
(a) If an Event of Default with respect to Securities of any series
at the time Outstanding (other than an Event of Default with respect to the
Company specified in clause (viii) or (ix) of Section 8.01(a) hereof) occurs and
is continuing, the Trustee (after receiving indemnities from the Holders to its
satisfaction) by notice to the Company, or the Holders of at least 25 percent in
aggregate principal amount of the Outstanding Securities of such series by
notice to the Company and the Trustee, may declare all Outstanding Securities of
such series to be due and payable immediately. Upon such declaration, the
amounts due and payable on the Securities of such series, as determined in
Section 8.02(b) hereof, will be due and payable immediately. If an Event of
Default specified in clause (viii) or (ix) of Section 8.01(a) hereof occurs,
such an amount will ipso facto become and be immediately due and payable without
any declaration, notice or other act on the part of the Trustee and the Company
or any Holder. The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series by written notice to the Trustee and the
Company may waive such Event of Default, rescind an acceleration and its
consequences (except an acceleration due to nonpayment of principal or interest
on the Securities of such series) if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived.
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(b) In the event that the maturity of the Securities of any series
is accelerated pursuant to Section 8.02(a) hereof, 100 percent of the principal
amount of the Securities of such series will become due and payable plus accrued
interest, if any, to the date of payment.
SECTION 8.03 OTHER REMEDIES
(a) If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal or interest on the Securities of any series or to enforce
the performance of any provision of the Securities of any series or this
Indenture.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Securities of any series or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default will not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 8.04 WAIVER OF PAST DEFAULTS AND COMPLIANCE WITH INDENTURE PROVISIONS
Subject to Sections 8.07 and 13.02 hereof, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series by notice to the Trustee may waive an existing Default or Event of
Default and its consequences (including waivers obtained in connection with a
tender offer or exchange offer for Securities), except a continuing Default or
Event of Default in the payment of the principal of or interest on any Security
of such series. 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 Event of Default or impair any right consequent thereon.
SECTION 8.05 CONTROL BY MAJORITY
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee (after
providing indemnities to the Trustee's satisfaction) or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Securities of such series,
or that may subject the Trustee to legal liability; provided that the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent
with such direction.
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SECTION 8.06 LIMITATIONS ON SUITS
(a) A Holder may pursue a remedy with respect to this Indenture or
the Securities of any series only if:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to the Securities of that series;
(ii) the Holder(s) of at least 25 percent in aggregate
principal amount of all of the Outstanding Securities of that series make
a written request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such series do
not give the Trustee a direction inconsistent with the request.
(b) A Holder of a Security of any series may not use this Indenture
to prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.
SECTION 8.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security of any series to receive payment of principal and
interest on the Security of such series, on or after the respective due dates
expressed in the Security of such series, or, subject to Section 8.06 hereof, to
bring suit for the enforcement of any such payment on or after such respective
dates, will not be impaired or affected without the consent of the Holder.
SECTION 8.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 8.01(a)(i) or
8.01(a)(ii) hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Company for the amount of principal and interest remaining unpaid on the
Securities of such series, determined in accordance with Section 8.02(b) hereof,
and such further amount as will be sufficient to cover the costs and expenses of
collection, including, without limitation, the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
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SECTION 8.09 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to 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, without limitation, any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, it agents and
counsel) and the Holders allowed in any judicial proceedings relative to the
Company, its creditors or property and will be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any Custodian 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 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 under Section 9.07 hereof.
Nothing contained herein 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.
SECTION 8.10 PRIORITIES
(a) Subject to Article 16 hereof, in the event the Trustee collects
any money pursuant to this Article 8, it will pay out the money in the following
order:
FIRST: to the Trustee for amounts due under Section 9.07 hereof;
SECOND: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
THIRD: to the Company or such other Person legally entitled
thereto.
(b) The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 8.10.
SECTION 8.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant (other than the Trustee) in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This
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Section 8.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 8.07 hereof, or a suit by Holders of more than ten percent
in aggregate principal amount of all of the Outstanding Securities of any
series.
SECTION 8.12 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 the Company, the
Trustee and the Holders will, subject to any determination in such proceeding,
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.
ARTICLE 9
TRUSTEE
SECTION 9.01 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the
Trustee will exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in such exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no
implied covenants or obligations will be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions which are specifically required to be
furnished to the Trustee by any of the provisions hereof, the
Trustee will examine the certificates and opinions to determine
whether or not, on their face, they appear to conform to the
requirements of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its own
gross negligent action, its own gross negligent failure to act, or its own
willful misconduct, except that:
(i) this Section 9.01(c) does not limit the effect of Section
9.01(b) hereof;
(ii) the Trustee will not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was grossly negligent in ascertaining the pertinent facts; and
(iii) the Trustee will not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 9.05 hereof or when
exercising any other trust or power conferred upon the Trustee under this
Indenture.
Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to clauses (i), (ii) and (iii)
of this Section 9.01(c).
(d) 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 has reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) The Trustee will not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. Subject to Sections 9.03 and 9.07 hereof,
all money received by the Trustee will, until applied as herein provided, be
held in trust for the payment of principal and interest on the Securities.
(f) The Trustee shall not be required to give any bond or surety in
respect of the exercise of its powers and performance of its duties hereunder.
SECTION 9.02 RIGHTS OF TRUSTEE
(a) Subject to Section 9.01 hereof:
(i) the Trustee may rely and will be protected in acting or
refraining from acting upon any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee determines to
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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;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate. The Trustee will not be liable for any
action it takes or omits to take in good faith in reliance on such
Officers' Certificate. The Trustee may consult with counsel satisfactory
to it and the written advice of such counsel or any Opinion of Counsel
will be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(iii) the Trustee may act through agents and will not be
responsible for the misconduct or negligence of any agent appointed with
due care; provided, however, that the Trustee will in any event be liable
for the misappropriation of funds deposited with it or in an account
within its dominion and control;
(iv) the Trustee will not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers conferred upon it by this Indenture; and
(v) unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company will be
sufficient if signed by an Officer of the Company.
(b) The Trustee will be under no obligation to exercise and may
refuse 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 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.
SECTION 9.03 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any of
its Affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
Sections 9.10 and 9.11 hereof.
SECTION 9.04 TRUSTEE'S DISCLAIMER
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities of any series, it will not be accountable
for any actions taken by the Company or any action taken by the Trustee
hereunder at the direction of the Company or in reliance upon an Opinion of
Counsel, and it will not be responsible for any statement or recital
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herein or any statement in the Securities of any series other than its
certificate of authentication. The immunities and exemptions from liability of
the Trustee hereunder shall extend to its directors, officers, employees and
agents.
SECTION 9.05 NOTICE OF DEFAULTS
If a Default or Event of Default with respect to any series of
Securities occurs and is continuing and if it is known to the Trustee, the
Trustee will mail to Holders of such Securities a notice of the Default or Event
of Default within 90 days after it occurs. However, except in the case of a
Default or Event of Default in payment of principal or interest on any Security
of such series, the Trustee may withhold such notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of such Holders.
SECTION 9.06 REPORTS BY TRUSTEE TO HOLDERS
(a) Within 60 days after each ______, beginning with ____________,
the Trustee will mail to Holders a brief report dated as of such reporting date
that complies with TIA Section 313(a); provided, however, if no event described
in TIA Section 313(a) has occurred within such calendar year, no report need be
transmitted. The Trustee also will comply with TIA Sections 313(b) and 313(c).
(b) A copy of each report at the time of its mailing to Holders
will be filed with the SEC and each stock exchange, if any, on which the
Securities of any series are listed. The Company will notify the Trustee when
the Securities of any series are listed on any stock exchange.
SECTION 9.07 COMPENSATION AND INDEMNITY
(a) The Company agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation will not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(ii) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture
(including, without limitation, the reasonable compensation and
the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may
be attributable to its gross negligence or bad faith; and
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(iii) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred
without gross negligence or bad faith on their part, arising out
of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder.
(b) To secure the Company's payment obligations in this Section
9.07, the Trustee will have a lien prior to the Securities on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities.
(c) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 8.01(a)(viii) or (a)(ix) occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 9.08 REPLACEMENT OF TRUSTEE
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 9.08.
(b) The Trustee may resign and be discharged from the trust hereby
created by so notifying the Company in writing. The Holders of a majority in
principal amount of the Outstanding Securities of any series may remove the
Trustee by so notifying the Trustee and the Company. The Company may remove the
Trustee if:
(i) the Trustee fails to comply with Section 9.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee.
(d) If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least ten
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percent in principal amount of the Outstanding Securities of any series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(e) If the Trustee with respect to any series of Securities fails
to comply with Section 9.10 hereof, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee with respect to such
series and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee with respect to such series and to the
Company. Thereupon the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and
duties of the Trustee under this Indenture. The successor Trustee will mail a
notice of its succession to the Holders. The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 9.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 9.08, the Company's obligations under Section
9.07 hereof will continue for the benefit of the retiring Trustee.
SECTION 9.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
(a) Subject to Section 9.10 hereof, if the Trustee with respect to
any series of Securities consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act will be the successor Trustee;
provided that in the case of a transfer of all or substantially all of its
corporate trust business to another corporation, the transferee corporation
expressly assumes all of the Trustee's liabilities hereunder.
(b) In case any Securities of any series 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 9.10 ELIGIBILITY; DISQUALIFICATION
(a) There will at all times be a Trustee hereunder which will (i)
be a corporation organized and doing business under the laws of the United
States, any state thereof or the District of Columbia, authorized under such
laws to exercise corporate trustee power, (ii) be subject to supervision or
examination by federal or state (or the District of Columbia) authority and
(iii) have a combined capital and surplus of at least $150 million as set forth
in its most recent published annual report of condition.
(b) This Indenture will always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1) and 310(a)(2). The Trustee is subject to
TIA Section 310(b). If at any
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time the Trustee ceases to be eligible in accordance with the provisions of this
Section 9.10, it will resign immediately in the manner and with the effect
specified in Section 9.08 hereof.
SECTION 9.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed will be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 10
HOLDERS' LISTS
SECTION 10.01 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the Trustee:
(i) semi-annually, not more than 15 days before each Interest
Payment Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of such series
of Securities as of the Regular Record Date of such Interest
Payment Date; and
(ii) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee will be the Registrar, no
such list need be furnished.
SECTION 10.02 PRESERVATION OF INFORMATION
The Trustee will preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 10.01 hereof and the names and addresses of such Holders received by the
Trustee in its capacity as Registrar or Paying Agent (if so acting). The Trustee
may destroy any list furnished to it as provided in Section 10.01 hereof upon
receipt of a new list so furnished.
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ARTICLE 11
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01 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 11.02 or 11.03 hereof applied to the Outstanding
Securities of any series designated pursuant to Section 3.01 hereof as being
defeasible pursuant to this Article 11 (hereinafter called a "Defeasible
Series"), upon compliance with the conditions set forth below in this Article
11.
SECTION 11.02 DEFEASANCE AND DISCHARGE
Upon the Company's exercise of the option provided in Section
11.01 hereof to have this Section 11.02 applied to the Outstanding Securities of
any Defeasible Series, the Company shall be deemed to have been discharged from
its obligations with respect to the Outstanding Securities of such series as
provided in this Section 11.02 on and after the date the conditions set forth in
Section 11.04 hereof are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities of
such series, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 11.05 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of Outstanding Securities of such series to
receive solely from the trust fund described in Section 11.04 hereof and as more
fully set forth in such Section, payments in respect of the principal of and
interest on such Securities of such series when payments are due, (ii) the
Company's obligations with respect to the Securities of such series under
Sections 3.04, 3.05, 3.06, 6.02 and 6.04 hereof, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Article 11.
Subject to compliance with this Article 11, the Company may exercise its option
provided in Section 11.01 hereof to have this Section 11.02 applied to the
Outstanding Securities of any Defeasible Series notwithstanding the prior
exercise of its option provided in Section 11.01 hereof to have Section 11.03
hereof applied to such Outstanding Securities.
SECTION 11.03 COVENANT DEFEASANCE
Upon the Company's exercise of the option provided in Section
11.01 hereof to have this Section 11.03 applied to the Outstanding Securities,
(i) the Company shall be released from its obligations under Sections 6.03 and
6.06 through 6.10, inclusive, Article 7, and any
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other covenants specified in or pursuant to this Indenture and (ii) the
occurrence of any event specified in Sections 8.01(a)(iv) (with respect to any
of Sections 6.03 and 6.06 through 6.10 inclusive, and any other covenants
specified in or pursuant to this Indenture) and 8.01(a)(x) shall be deemed not
to be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section 11.03 on and
after the date the conditions set forth in Section 11.04 hereof are satisfied
(hereinafter called "Covenant Defeasance"), and such Securities shall thereafter
be deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent, declaration or act of Holders (and the consequences thereof) in
connection with such covenants, but shall continue to be "Outstanding" for all
other purposes hereunder. For this purpose, such Covenant Defeasance means that,
with respect to such Outstanding Securities, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly by reason of any
reference elsewhere herein to any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or Event of Default under Section 8.01(a)(iv) or 8.01(a)(x), or otherwise, as
the case may be, but, except as specified above, the remainder of this Indenture
and the Securities of such series shall be unaffected thereby.
SECTION 11.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
The following shall be the conditions to application of either
Section 11.02 or 11.03 hereof to the Outstanding Securities of any Defeasible
Series:
(i) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee that satisfies the
requirements contemplated by Section 9.10 hereof and agrees to comply with
the provisions of this Article 11 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of Outstanding Securities of such series, (A) money in an amount,
or (B) U.S. Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, (1) the
principal of and interest on the Securities of such series on the
respective Stated Maturities (or redemption date, if applicable) of such
principal or installment of interest and (2) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and such Securities; provided that the Trustee
shall have been irrevocably instructed to apply such money or the proceeds
of such U.S.
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Government Obligations to said payments with respect to such Securities.
Before such a deposit, the Company may give to the Trustee, in accordance
with Section 4.02 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in accordance with
the terms of the Securities of such series and Article 4 hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(ii) In the case of an election under Section 11.02 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
first set forth hereinabove, 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 such Defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge were
not to occur.
(iii) In the case of an election under Section 11.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as
result of such Covenant Defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
be the case if such deposit and Covenant Defeasance were not to occur.
(iv) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such series, if
then listed on any securities exchange, will not be delisted as a result
of such Defeasance or Covenant Defeasance.
(v) No Default or Event of Default shall have occurred and be
continuing at the time of such deposit.
(vi) Such Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of the TIA
(assuming all Securities are in default within the meaning of the TIA).
(vii) Such Defeasance or Covenant Defeasance shall 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.
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(viii) Notwithstanding any other provisions of this Section,
such Defeasance or Covenant Defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 3.01 hereof.
(ix) The Company shall have delivered to the Trustee an
Officers' Certificate, stating that all conditions precedent with respect
to such Defeasance or Covenant Defeasance have been complied with.
(x) No event or condition shall exist that, pursuant to the
provisions of Article 16 hereof, would prevent the Company from making
payments of the principal of or interest on the Securities of such series
on the date of such deposit or at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be qualified under such Act or exempt from regulation thereunder.
SECTION 11.05 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS
Subject to the provisions of Section 6.04(e) hereof, all money and
U.S. Government Obligations (or other property as may be provided pursuant to
Section 3.01 hereof) (including the proceeds thereof) deposited with the Trustee
or other qualifying trustee (solely for purposes of this Section 11.05 and
Section 11.06 hereof, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 11.04 hereof in respect of
the Outstanding Securities of any Defeasible Series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Outstanding
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 such Securities of all
sums due and to become due thereon in respect of principal and interest, but
such money so held in trust need not be segregated from other funds except to
the extent required by law.
The Company shall 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 11.04 hereof 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.
Anything in this Article 11 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company any money or U.S. Government
Obligations (or other property
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and any proceeds therefrom) held by it with respect to Outstanding Securities of
any Defeasible Series that are in excess of the amount thereof that was used to
pay the Securities of such series upon Maturity.
SECTION 11.06 REINSTATEMENT
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article 11 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
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article 11 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 11.05 hereof with respect to Securities of such series in accordance
with this Article 11; provided, however, that if the Company makes any payment
of principal of or interest on any Security of such series following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of Securities of such series to receive such payment from the
money so held in trust.
ARTICLE 12
SATISFACTION AND DISCHARGE
SECTION 12.01 SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities (except as to any surviving
rights of registration of transfer or exchange of Securities of such series
herein expressly provided for) and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(i) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities of such series which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 3.06 hereof, and (ii) Securities of
such series for whose payment money has theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and
held in trust by the Company and thereafter repaid to the Company,
as provided in Section 6.04 hereof) have been delivered to the
Trustee for cancellation; or
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(B) all Securities of such series and, in the case of (1) or
(2) below, not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated
Maturity within one year, or
(3) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (1), (2) or (3) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose an amount in cash
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal 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;
(ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 9.07 hereof and, if
money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (i) of this Section 12.01, the obligations of the Trustee under Sections
12.02 and 6.04(e) hereof shall survive.
SECTION 12.02 APPLICATION OF TRUST MONEY
Subject to the provisions of Section 6.04(e) hereof, all money
deposited with the Trustee pursuant to Section 12.01 hereof shall 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 interest for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
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ARTICLE 13
SUPPLEMENTAL INDENTURES
SECTION 13.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
(a) The Company and the Trustee may amend this Indenture or the
Securities or waive any provision hereof without the consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Section 7.01 hereof;
(iii) to provide for uncertificated Securities in addition to
certificated Securities;
(iv) to make any change that does not adversely affect the
legal rights hereunder of any Holder of a Security of any series;
(v) 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;
(vi) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all
series of Securities, stating that such Events of Default are
being included solely for the benefit of such series);
(vii) 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 shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
(viii) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 3.01 hereof;
(ix) to evidence and provide for the acceptance of appointment
hereunder of a successor Trustee with respect to the Securities of
one or more
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series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 9.08 hereof;
(x) to supplement any of the provisions of the Indenture to
such extent as shall be necessary to implement the provisions of
Article 11 hereof or discharge of any series of Securities
pursuant to Sections 12.01, 12.02 and 12.03 hereof; provided that
any such action shall not adversely affect the interests of the
Holders of Securities of such series or any other series in any
material respect; or
(xi) to comply with the qualification of this Indenture under
the TIA.
(b) Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 13.06 hereof,
the Trustee will join with the Company in the execution of any supplemental
indenture authorized or permitted by the terms of this Indenture and make any
further appropriate agreements and stipulations that may be contained therein.
After an amendment or waiver under this Section 13.01 becomes effective, the
Company will mail to the Holders of each Security affected thereby a notice
describing the amendment or waiver. Any failure of the Company to mail such
notice, will not, however, affect the validity of any such supplemental
indenture.
SECTION 13.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
(a) Except as provided below in this Section 13.02, the Company
and the Trustee may amend this Indenture or the Securities with the written
consent (including consents obtained in connection with a tender offer or
exchange offer for Securities) of the Holders of at least a majority in
principal amount of the Outstanding Securities of each series affected by such
amendment.
(b) Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the documents described in Section
13.06 hereof, the Trustee will join with the Company in the execution of such
supplemental indenture.
(c) It will not be necessary for the consent of the Holders under
this Section 13.02 to approve the particular form of any proposed amendment or
waiver, but it will be sufficient if such consent approves the substance
thereof.
(d) The Holders of a majority in principal amount of the
Outstanding Securities of each series affected may waive compliance in a
particular instance by the Company
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with any provision of this Indenture (including waivers obtained in connection
with a tender offer or exchange offer for Securities). However, without the
consent of each Holder of an Outstanding Security affected thereby, an amendment
or waiver under this Section 13.02 may not:
(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
change the Place of Payment where any Security or interest thereon
is payable, or change the coin or currency in which any Security
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 or
repayment at the option of the Holder, on or after the redemption
date or repayment date), or
(ii) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such amendment, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture, or
(iii) modify any of the provisions of this Section or Section
8.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby, or
(iv) modify any of the provisions of this Indenture relating
to the subordination of the Securities in a manner adverse to the
Holders.
(e) 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, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
(f) The right of any Holder to participate in any consent required
or sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder has been the Holder of record of any
Securities of any series with respect to which such consent is required or
sought as of a date identified by the Trustee in a notice furnished to Holders
in accordance with the terms of this Indenture.
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SECTION 13.03 COMPLIANCE WITH TIA
Every amendment to this Indenture or the Securities will comply in
form and substance with the TIA as then in effect.
SECTION 13.04 REVOCATION AND EFFECT OF CONSENTS
(a) Until an amendment (which includes any supplement) or waiver
becomes effective, a consent to it by a Holder of a Security of any series is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to such Holder's
Security or portion of a Security if the Trustee receives written notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
(b) The Company may, but will not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment or waiver. If the Company elects to fix a record date for such
purpose, the record date will be fixed at (i) the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders furnished to the Trustee prior to such solicitation pursuant to Section
10.02 hereof or (ii) such other date as the Company will designate. If a record
date is fixed, then notwithstanding the provisions of Section 13.04(a) hereof,
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, will be entitled to consent to such amendment
or waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No consent will be valid or
effective for more than 90 days unless consents from Holders of the principal
amount of Securities required hereunder for such amendment or waiver to be
effective has also been given and not revoked within such 90-day period.
(c) After an amendment or waiver becomes effective it will bind
every Holder of a Security of any series affected thereby, unless it is of the
type described in any of clauses (i) through (iv) of Section 13.02(d) hereof.
Any amendment or waiver will bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security that evidences the same debt as the
consenting Holder's Security.
SECTION 13.05 NOTATION ON OR EXCHANGE OF SECURITIES
The Trustee may place an appropriate notation about an amendment
or waiver on any Security of any series affected thereby thereafter
authenticated. The Company in exchange for all Securities of such series may
issue and the Trustee will authenticate new Securities of such series that
reflect the amendment or waiver.
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SECTION 13.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee will sign any amendment or supplemental indenture
authorized pursuant to this Article 13 if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee will be entitled to receive
and, subject to Section 9.01 hereof, will be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
SECTION 13.07 SUBORDINATION UNIMPAIRED
This Indenture may not be amended to alter the subordination of
any Outstanding Securities without the written consent of each holder of Senior
Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE 14
MISCELLANEOUS
SECTION 14.01 TIA CONTROLS
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties will control.
SECTION 14.02 NOTICES
(a) Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company:
U.S. Home Corporation
0000 Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Attention: President
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If to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Attention: Corporate Trust Agency & Administration
(b) The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
(c) All notices and communications will be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, if mailed; when answered back,
if telexed; when receipt acknowledged by the Trustee's result report, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
(d) Any notice or communication to a Holder will be mailed by
first-class, postage-prepaid mail, return receipt requested, to the Holder's
address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it will not affect its sufficiency
with respect to other Holders.
(e) If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
(f) If the Company mails a notice or communication to Holders, it
will mail a copy to the Trustee and each Agent at the same time.
SECTION 14.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Securities Register and anyone else will have the
protection of TIA Section 312(c).
SECTION 14.04 ACTION BY SECURITYHOLDERS
Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Outstanding Securities
may take any action (including the making of any demand or request, the giving
of any notice, consent or waiver or the taking of any other action), the fact
that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced by any instrument or any
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number of instruments of similar tenor executed by (i) Holders in person or (ii)
agent or proxy appointed in writing, or by the record of the Holders in favor
thereof, at any meeting of Holders duly called and held in accordance with the
provisions of Article 15 hereof, or (iii) a combination of such instrument or
instruments of any such record of such meeting of Holders, but in each case only
to the extent that the Holders shall not have revoked such action pursuant to
Section 13.04 hereof.
Without limiting the generality of this Section 14.04, a Holder,
including a Depository that is a Holder of one or more Global Securities, may
make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders and a
Depository that is a Holder of one or more Global Securities may provide its
proxy or proxies to the beneficial owners of interests in any such Global
Securities through such Depository's standing instructions and customary
practices.
The Company, with advance approval by the Trustee, Trustee will
fix a record date for the purpose of determining the Persons who are beneficial
owners of interests in any Global Security held by a Depository entitled under
the procedures of such Depository to make, give or take, by a proxy or proxies
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders. If such a record date is fixed, the Persons who are
such beneficial owners at the close of business on such record date or their
duly appointed proxy or proxies will be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other
actions, whether or not such Persons remain such beneficial owners after such
record date. No such request, demand, authorization, direction, notice, consent,
waiver or other action will be valid or effective if made, given or taken more
than six months after such record date.
SECTION 14.05 PROOF OF EXECUTION OF INSTRUMENTS AND HOLDING OF SECURITIES
Proof of the execution of any instrument by a Holder or such
Holder's agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:
(1) The fact and date of the execution by any such Person of
any instrument may be proved by the certificate of any notary
public or other officer of any jurisdiction authorized to take
acknowledgments of deeds to be recorded in such jurisdiction that
the Person executing such instrument acknowledged to him the
execution thereof, or by an affidavit of a witness to such
execution sworn to before any such notary or other officer. Such
certificate or affidavit shall also constitute sufficient proof of
the authority of the Person executing any instrument in cases
where Securities are not held by Persons in their individual
capacities.
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(2) The fact and date of execution of any such instrument may
also be proved in any other manner which the Trustee deems
sufficient.
(3) The ownership of Securities shall be proved by the
Securities Register for such Security or by a certificate of the
Registrar.
(4) The Trustee shall not be bound to recognize any Person as
a Securityholder unless such Holder's title to any Security held
by such Holder is proved in the manner provided in this Section
14.05.
The Trustee may require such additional proof of any matter
referred to in this Section 14.05 as it shall deem necessary.
SECTION 14.06 OBLIGATION TO DISCLOSE BENEFICIAL OWNERSHIP OF SECURITIES
All Securities shall be held and owned upon the express condition
that, upon demand of any regulatory agency having jurisdiction over the Company,
and pursuant to law or regulation empowering such agency to assert such demand,
any Holder shall disclose to such agency the identity of the beneficial owner of
all Securities held by such Holder.
SECTION 14.07 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company will furnish to the Trustee
and the Trustee may rely upon, as conclusive evidence:
(i) an Officers' Certificate (which will include the
statements set forth in Section 14.08 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed
action have been complied with; and
(ii) an Opinion of Counsel (which will include the statements
set forth in Section 14.08 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have
been complied with.
SECTION 14.08 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
(a) Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) will include:
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(i) a statement that the Person making such certificate or
opinion has read such condition or covenant;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such Person, such
Person has made such examination or investigation as is necessary
to enable him or her to express an informed opinion as to whether
or not such condition or covenant has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
(b) Any Officers' Certificate may be based, insofar as it relates
to legal matters, upon an Opinion of Counsel, unless such Officer knows that the
opinion with respect to the matters upon which his certificate may be based as
aforesaid is erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company, or other Persons or
firms deemed appropriate by such counsel, unless such counsel has actual
knowledge that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous.
(c) Any Officers' Certificate, statement or Opinion of Counsel may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representation by an accountant (who may be an employee of the
Company), or firm of accountants, unless such Officer or counsel, as the case
may be, has actual knowledge that the certificate or opinion or representation
with respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
SECTION 14.09 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 14.10 NO RECOURSE AGAINST OTHERS
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A director, officer or employee of the Company, as such, will have
no liability for any obligations of the Company under the Securities or this
Indenture. Each Holder by accepting a Security waives and releases all such
liability.
SECTION 14.11 GOVERNING LAW
This Indenture and the Securities will be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of law.
SECTION 14.12 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary thereof. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
This writing constitutes the entire agreement of the parties with respect to the
subject matter hereof. Unless expressly otherwise indicated herein, an action or
transaction permitted by one provision hereof must nonetheless comply with all
other applicable provisions hereof; and any action or transaction not permitted
by any provision of this Indenture will not be permitted regardless of whether
any other provision hereof might permit such action or transaction.
SECTION 14.13 SUCCESSORS
All agreements of the Company in this Indenture and the Securities
will bind its successors. All agreements of the Trustee in this Indenture will
bind its successors.
SECTION 14.14 SEVERABILITY
In case any provision in this Indenture or in the Securities is
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions will not in any way be affected or impaired thereby.
SECTION 14.15 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
SECTION 14.16 TRUSTEE AS PAYING AGENT AND REGISTRAR
The Company initially appoints the Trustee as Paying Agent and
Registrar.
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SECTION 14.17 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and will in no way modify
or restrict any of the terms or provisions hereof.
SECTION 14.18 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, the holders of Senior Indebtedness and the Holders, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 14.19 ACCEPTANCE OF TRUST
IBJ Xxxxxxxx Bank & Trust Company, the Trustee named herein,
hereby accepts the trusts in this Indenture declared and provided, upon the
terms and conditions hereinabove set forth.
ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
SECTION 15.01 PURPOSES OF MEETINGS
A meeting of Holders may be called at any time and from time to
time pursuant to the provisions of this Article 15 for any of the following
purposes:
(A) to give any notice to the Company or to the Trustee, or to give any
direction to the Trustee, or to waive any non-performance hereunder, and its
consequences, or to take any other action authorized to be taken by Holders
pursuant to any of the provisions of this Indenture;
(B) to remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Section 9.08 hereof;
(C) to consent to the amendment of the provisions contained herein and
the execution of an indenture or indentures supplemental hereto pursuant to the
provisions of Article 13 hereof; or
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(D) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Outstanding
Securities under any other provision of this Indenture or under applicable law.
SECTION 15.02 CALL OF MEETINGS BY TRUSTEE
The Trustee may at any time call a meeting of Holders to take any
action specified in Section 15.01, to be held at such time and at such place in
the State of New York, as the Trustee shall determine. Notice of each meeting of
the Holders of Securities, setting forth the time and the place of such meeting
and, in general terms, the action proposed to be taken at such meeting, shall be
mailed by the Trustee to the Holders, not less than 20 nor more than 60 days
prior to the date fixed for the meeting, at their last addresses as they shall
appear on the Security Register.
SECTION 15.03 CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS
If at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 20 percent in aggregate principal amount of the Outstanding
Securities, shall have requested the Trustee to call a meeting of Holders to
take any action authorized in Section 15.01 hereof, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or the Holders in the amount above
specified may determine the time and the place in the State of New York for such
meeting, and may call such meeting by mailing notice thereof as provided in
Section 15.02.
SECTION 15.04 PERSON ENTITLED TO VOTE AT MEETING
To be entitled to vote at any meeting of Holders, a Person shall
be a Holder or be a Person appointed by an instrument in writing as proxy by a
Holder. The only Persons who shall be entitled to be present or speak at any
meeting of the Holders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Company and its counsel.
SECTION 15.05 REGULATIONS FOR MEETING
Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders in regard to the appointment of proxies, the proof of the holding of
Securities, the appointment and duties of inspectors of votes, the submission
and examination of proxies and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 14.05 hereof
and the appointment of any proxy shall be
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proved in the manner specified in such Section 14.05 or by having the signature
of the person executing the proxy witnessed or guaranteed by any bank, banker,
trust company or New York Stock Exchange, Inc. member firm satisfactory to the
Trustee.
The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by the Holders as provided in Section 15.03, in which case the
Company or the Holders calling the meeting, as the case may be, shall appoint a
temporary chairman. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Holders of a majority in principal
amount of the Securities represented at the meeting and entitled to vote.
At any meeting of Holders, the presence of Persons holding or
representing Securities in an aggregate principal amount sufficient to take
action upon the business for the transaction of which such meeting was called
shall be necessary to constitute a quorum; but, if less than a quorum be
present, the Persons holding or representing a majority in aggregate principal
amount of the Securities represented at the meeting may adjourn such meeting
with the same effect, for all intents and purposes, as though a quorum had been
present.
ARTICLE 16
SUBORDINATION; SENIORITY
SECTION 16.01 SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS
(a) The Company agrees, and each Holder of a Security of any
series by such Holder's acceptance thereof likewise agrees, that the payment of
the principal of, and interest on (including, without limitation, interest
accruing subsequent to the filing of a petition under applicable Bankruptcy Law
or the appointment of a Custodian), the Securities of each series hereunder is
subordinated and junior in right of payment, to the extent and in the manner
provided in this Article 16, except as provided in Section 9.07, to the prior
payment in full in cash or Cash Equivalents or all Senior Indebtedness whether
outstanding on the Issue Date of the Securities of any series or created,
incurred, assumed or guaranteed thereafter. The Securities of any series shall
rank pari passu with the Company's 4 7/8% Convertible Subordinated Debentures
due 2005.
(b) All the provisions of this Indenture and the Securities of any
series will be subject to the provisions of this Article 16 so far as they may
be applicable thereto, except that nothing in this Article 16 will apply to
claims for, or payments to, the Trustee under or pursuant to Section 9.07
hereof.
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SECTION 16.02 COMPANY NOT TO MAKE PAYMENTS WITH RESPECT TO SECURITIES IN CERTAIN
CIRCUMSTANCES
(a) No payment will be made by the Company on account of principal
of or interest on the Securities of any series, nor may the Company purchase or
otherwise acquire such Securities for cash or property (other than Capital Stock
or other securities of the Company that are subordinated to Senior Indebtedness
to at least the same extent as the Securities) if at the time of such payment or
immediately after giving effect thereto there will have occurred and be
continuing (i) a default in the payment of principal of (or premium, if any, on)
or interest on any Designated Senior Indebtedness continuing beyond the
applicable period of grace, if any, specified in the applicable instrument,
lease, contract, agreement or other document evidencing such Designated Senior
Indebtedness a default, other than a payment default as specified in clause (i)
of this Section 16.02(a), that permits the holders of Designated Senior
Indebtedness to accelerate the maturity thereof, and the Trustee shall have
received notice thereof from the trustee or other representative of the holders
of Designated Senior Indebtedness, which notice shall request that payment of
principal or interest on the Securities be prohibited (provided, however, that
in the case of Designated Senior Indebtedness issued pursuant to an indenture,
such notice may be validly given only by the trustee under such indenture),
provided that the foregoing will not prohibit payments made pursuant to Articles
11 or 12 hereof from monies deposited with the Trustee pursuant thereto prior to
any such default, judicial proceeding or notice.
(b) Notwithstanding Section 16.02(a) hereof, the Company shall
resume payments on the Securities of any series and may acquire such Securities
upon the earlier of:
(i) the date upon which the default or event of default as
specified in Section 16.02(a) hereof is cured or waived or ceases to
exist, or
(ii) in the case of an event of default as specified in clause
(ii) of Section 16.02(a), the expiration of 179 days after such notice
as set forth in clause (ii) of Section 16.02(a) is received (each such
period under clause (ii) of this Section 16.02(b), a "Payment Blockage
Period").
Notwithstanding anything in this Section 16.02(b) to the contrary, (A) only one
such Payment Blockage Period may be commenced within any 365 consecutive day
period and (B) in no event will a Payment Blockage Period extend beyond 179 days
from the date the payment on the Securities of any series is due. For purposes
of this Section 16.02, no default which, to the knowledge of the trustee or
other representative of Designated Senior Indebtedness, existed or was
continuing on the date of the commencement of any Payment Blockage Period shall
be, or be made, the basis for the commencement of a second Payment Blockage
Period by such trustee or representative, whether or not within a period of 365
consecutive days, unless such default shall have been cured or waived or shall
have ceased to exist, or the benefits of this Section 16.02(b) shall have been
waived in writing by such trustee or representative for a period of not less
than 90 consecutive days.
(c) Upon any acceleration of the principal of the Securities of
any series or any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding up or liquidation or reorganization of
the Company, whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Indebtedness (including, without limitation, interest accruing subsequent
to the filing of a petition under applicable Bankruptcy Law or the appointment
of a Custodian) will first be paid in full in cash or Cash Equivalents, or
payment thereof provided for, before any payment is made on account of the
principal of or interest on the Securities (except payments made pursuant to
Articles 11 or 12 hereof from monies deposited with the Trustee pursuant thereto
prior to the happening of such dissolution, winding up, liquidation or
reorganization); and upon any such dissolution or winding up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee would be entitled except for the provisions of
this Article 16, will (except as aforesaid) be paid by the Company or by any
Custodian or other Person, or by the Holders or the Trustee, making such payment
or distribution directly to the holders of Senior Indebtedness (pro rata to such
holders on the basis of the respective amounts of Senior Indebtedness held by
such holders, as calculated by the Company) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary so that the
holders of all Senior
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Indebtedness have been paid in full in cash or Cash Equivalents, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the Holders or to
the Trustee, except that Holders shall be entitled to receive securities that
are subordinated to Senior Indebtedness to at least the same extent as the
Securities.
(d) If the Trustee or any Holder does not file a proper claim
or proof of debt in the form required in any proceeding referred to above prior
to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Indebtedness is hereby authorized, and
has the right, to file an appropriate claim or claims for or on behalf of the
Trustee or such Holder.
(e) In the event that, notwithstanding the foregoing, any
payment by or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, prohibited by the foregoing, is
received by the Trustee or the Holders before all Senior Indebtedness is paid in
full in cash or Cash Equivalents, or provision is made for such payment in cash
or Cash Equivalents, such payment or distribution will be paid over or delivered
to the holders of Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay the holders
of all Senior Indebtedness in full in cash or Cash Equivalents, after giving
effect to any concurrent payment or distribution to or for the holders of such
Senior Indebtedness, and, until so delivered, the same will be held in trust by
the Trustee or any Holder as the property of the holders of Senior Indebtedness
(but subject to the power of a court of competent jurisdiction to make other
equitable provision, which will have been determined by such court to give
effect to the rights conferred in this Article 16 upon the Senior Indebtedness
and the holders thereof with respect to the Securities or the Holders or the
Trustee, by a lawful plan of reorganization or readjustment under applicable
Bankruptcy Laws). The Trustee will not have any obligation or duty to recover
any such amounts so distributed.
(f) The consolidation of the Company with, or the merger of
the Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided in Article 7 hereof will not be deemed a dissolution,
winding up, liquidation or reorganization for the purposes of this Section 16.02
if such other corporation will, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article 7 hereof.
Nothing in this Section 16.02 will apply to claims of, or payments to, the
Trustee under or pursuant to Section 9.07 hereof.
(g) The holders of Senior Indebtedness may, at any time and
from time to time, without the consent of, or notice to, the Holders or the
Trustee, without incurring responsibility to the Holders or the Trustee and
without impairing or releasing the rights of any holder of Senior Indebtedness
or in any way altering or affecting any of the provisions of this
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Article 16: (i) change the amount, manner, place or terms of payment or change
or extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend in any manner Senior Indebtedness or any instrument evidencing
the same or any agreement under which Senior Indebtedness is outstanding, (ii)
sell, exchange, release or otherwise deal with any property pledged, mortgaged
or otherwise securing Senior Indebtedness, (iii) release any Person liable in
any manner for the collection of Senior Indebtedness, and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 16.03 SUBROGATION OF SECURITIES
(a) Subject to the payment in full of all Senior Indebtedness
at the time outstanding, the Holders will be subrogated (without any duty on the
part of the holders of Senior Indebtedness to warrant, create, effectuate,
preserve or protect each subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Indebtedness until the
principal of and interest on the Securities of each series will be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or securities to which the
Holders or the Trustee on their behalf would be entitled except for the
provisions of this Article 16, and no payments over pursuant to the provisions
of this Article 16, to the holders of Senior Indebtedness by Holders or the
Trustee on their behalf will, as between the Company, its creditors (other than
holders of Senior Indebtedness), and the Holders, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that
the provisions of this Article 16 are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
Senior Indebtedness, on the other.
(b) Nothing contained in this Article 16 or elsewhere in this
Indenture or in the Securities of any series is intended to or will impair, as
among the Company, its creditors other than the holders of Senior Indebtedness
and the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of and interest on the
Securities of each series as and when the same will become due and payable in
accordance with their terms, or is intended to or will affect the relative
rights of the Holders and creditors of the Company other than the holders of
Senior Indebtedness, nor will anything herein or therein prevent the Trustee or
any Holder from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article 16 of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
(c) Upon any payment or distribution of assets of the Company
referred to in this Article 16, the Trustee and the Holders will be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or certificate of the Custodian or other Person making
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such payment or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the holders of Senior Indebtedness and other
Indebtedness of the Company and the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 16.
SECTION 16.04 AUTHORIZATION BY HOLDERS
Each Holder by such Holder's acceptance of a Security of any
series authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate, as between the Holder
and the holders of Senior Indebtedness, the subordination provided in this
Article 16 and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
SECTION 16.05 NOTICES TO TRUSTEE
(a) The Company will give prompt written notice in the form of
an Officers' Certificate to the Trustee of any fact known to the Company which
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities of any series pursuant to the provisions of this
Article 16. Notwithstanding the provisions of this Article 16 or any other
provision of this Indenture, the Trustee will not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities of any series pursuant
to the provisions of this Article 16, unless and until the Trustee will have
received at its Corporate Trust Office written notice thereof from the Company
or a holder or holders of Senior Indebtedness or from a representative or
trustee therefor; provided, that in the case of Senior Indebtedness issued
pursuant to an indenture, such notice may be validly given only by the trustee
under such indenture; and before the receipt of any such written notice, the
Trustee will be entitled in all respects to assume that no such facts exist;
provided further that if the Trustee will not have received, at least three
Business Days prior to the date upon which by the terms hereof any such monies
may become payable for any purpose (including, without limitation, the payment
of the principal of or interest on any Security of any series), with respect to
such monies, the notice provided for in this Section 16.05, then, anything
herein contained to the contrary notwithstanding, the Trustee will have the full
power and authority to receive such monies and to apply the same to the purpose
for which they were received and will not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.
(b) The Trustee will be entitled to rely on the delivery to it
of a written notice by a Person representing himself or herself to be a holder
of Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness or a trustee or a
representative on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant
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to this Article 16, the Trustee may request such Person to provide evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article 16, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
(c) Notwithstanding anything to the contrary hereinbefore set
forth, nothing will prevent any payment by the (i) Company or the Trustee to the
Holders of monies in connection with a redemption of Securities of any series if
(A) notice of such redemption had been given pursuant to Article 4 hereof prior
to the receipt by the Company or the Trustee, as applicable, of written notice
as aforesaid, and (B) such notice of redemption is given not earlier than sixty
days before the redemption date, or (ii) Trustee to the Holders of amounts
deposited with it pursuant to Articles 11 or 12 hereof.
(d) The Company agrees that if any default occurs with respect to
any Senior Indebtedness, which default permits the holders of such Senior
Indebtedness to accelerate the maturity thereof, the Company will give prompt
notice in writing of such happening to all known holders of Senior Indebtedness
and will certify to each such holder the name of the Trustee and current notice
address.
SECTION 16.06 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS
(a) The Trustee in its individual capacity will be entitled to
all the rights set forth in this Article 16 in respect of any Senior
Indebtedness at any time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in Section 9.03 or elsewhere in this Indenture
will deprive the Trustee of any of its rights as such holder.
(b) With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 16, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness will
be read into this Indenture against the Trustee. The Trustee will not owe any
fiduciary duty to the holders of Senior Indebtedness but will have only such
obligations to such holders as are expressly set forth in this Article 16.
SECTION 16.07 NO IMPAIRMENT OF SUBORDINATION
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided will at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by an act or failure to act, in good faith, by any such holder, or by
any noncompliance by the Company with the terms, provisions and covenants
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of this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
SECTION 16.08 ARTICLE 16 NOT TO PREVENT EVENTS OF DEFAULT
No provision of this Article 16 will prevent the occurrence of an
Event of Default hereunder.
SECTION 16.09 PAYING AGENTS OTHER THAN THE TRUSTEE
In any case at any time any Paying Agent other than the Trustee
has been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article 16 will in such case (unless the context will
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if
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such place of the Trustee; provided, however, that Sections 16.05 and 16.06
hereof will not apply to the Company or any Subsidiary if it acts as Paying
Agent.
IN WITNESS WHEREOF, the undersigned have duly executed this
Indenture as of the date first above written.
U.S. HOME CORPORATION
By:
------------------------------
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
By:
------------------------------
Name:
Title:
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