EXHIBIT 4.4
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XXXXX INDUSTRIES, INC.
ISSUER
AND
WILMINGTON TRUST COMPANY
TRUSTEE
INDENTURE
DATED AS OF _______________, 199__
SUBORDINATED DEBT SECURITIES
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions of Terms................................................. 1
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.1. Designation and Terms of Debt Securities............................. 6
SECTION 2.2. Form of Debt Securities and Trustee's Certificate.................... 8
SECTION 2.3. Denominations; Provisions for Payment................................ 8
SECTION 2.4. Execution and Authentication......................................... 9
SECTION 2.5. Registration of Transfer and Exchange................................ 10
SECTION 2.6. Temporary Securities................................................. 11
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Debt Securities................. 11
SECTION 2.8. Cancellation......................................................... 12
SECTION 2.9. Benefits of Indenture................................................ 12
SECTION 2.10. Authenticating Agent................................................. 13
SECTION 2.11. Global Securities.................................................... 13
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1. Redemption........................................................... 14
SECTION 3.2. Notice of Redemption................................................. 14
SECTION 3.3. Payment Upon Redemption.............................................. 15
SECTION 3.4. Sinking Fund......................................................... 16
SECTION 3.5. Satisfaction of Sinking Fund Payments with Debt Securities........... 16
SECTION 3.6. Redemption of Debt Securities for Sinking Fund....................... 16
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal, Premium and Interest........................... 17
SECTION 4.2. Maintenance of Office or Agency...................................... 17
SECTION 4.3. Paying Agents........................................................ 17
SECTION 4.4. Appointment to Fill Vacancy in Office of Trustee..................... 18
SECTION 4.5. Compliance with Consolidation Provisions............................. 18
SECTION 4.6. Limitation on Dividends.............................................. 18
SECTION 4.7. Covenants as to Xxxxx Trusts......................................... 19
SECTION 4.8. Corporate Existence.................................................. 19
SECTION 4.9. Notice of Default.................................................... 19
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ARTICLE V
SEURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Names and Addresses of Securityholders.... 19
SECTION 5.2. Preservation Of Information; Communications With Securityholders..... 20
SECTION 5.3. Reports By the Company............................................... 20
SECTION 5.4. Reports by the Trustee............................................... 20
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Events of Default.................................................... 21
SECTION 6.2. Collection of Indebtedness and Suits for Enforcement by Trustee...... 23
SECTION 6.3. Application of Moneys Collected...................................... 24
SECTION 6.4. Limitation on Suits.................................................. 24
SECTION 6.5. Rights and Remedies Cumulative; Delay or Omission Not Waiver......... 25
SECTION 6.6. Control by Securityholders........................................... 26
SECTION 6.7. Undertaking to Pay Costs............................................. 26
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities of Trustee....................... 27
SECTION 7.2. Certain Rights of Trustee............................................ 28
SECTION 7.3. Trustee Not Responsible for Recitals or Issuance of Debt Securities.. 29
SECTION 7.4. May Hold Debt Securities............................................. 29
SECTION 7.5. Moneys Held in Trust................................................. 29
SECTION 7.6. Compensation and Reimbursement....................................... 29
SECTION 7.7. Reliance on Officers' Certificate.................................... 30
SECTION 7.8. Qualification; Conflicting Interests................................. 30
SECTION 7.9. Corporate Trustee Required; Eligibility.............................. 30
SECTION 7.10. Resignation and Removal; Appointment of Successor.................... 31
SECTION 7.11. Acceptance of Appointment By Successor............................... 32
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.......... 33
SECTION 7.13. Preferential Collection of Claims Against the Company................ 33
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. Evidence of Action by Securityholders................................ 33
SECTION 8.2. Proof of Execution by Securityholders................................ 34
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SECTION 8.3. Who May be Deemed Owners............................................. 34
SECTION 8.4. Certain Debt Securities Owned by Company Disregarded................. 34
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without the Consent of Securityholders....... 35
SECTION 9.2. Supplemental Indentures With Consent of Securityholders.............. 36
SECTION 9.3. Effect of Supplemental Indentures.................................... 36
SECTION 9.4. Debt Securities Affected by Supplemental Indentures.................. 37
SECTION 9.5. Execution of Supplemental Indentures................................. 37
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.1. Company May Consolidate, Etc......................................... 37
SECTION 10.2. Successor Corporation Substituted.................................... 38
SECTION 10.3. Evidence of Consolidation, Etc. to Trustee........................... 38
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge of Indenture.............................. 39
SECTION 11.2. Discharge of Obligations............................................. 39
SECTION 11.3. Deposited Moneys to be Held in Trust................................. 40
SECTION 11.4. Payment of Moneys Held by Paying Agents.............................. 40
SECTION 11.5. Repayment to Company................................................. 40
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1. No Recourse.......................................................... 41
ARTICLE XIII
SUBORDINATION OF DEBT SECURITIES
SECTION 13.1. Agreement to Subordinate............................................. 41
SECTION 13.2. Default on Senior Indebtedness....................................... 41
SECTION 13.3. Liquidation; Dissolution; Bankruptcy................................. 42
SECTION 13.4. Subrogation.......................................................... 43
SECTION 13.5. Trustee to Effectuate Subordination.................................. 44
SECTION 13.6. Notice by the Company................................................ 44
SECTION 13.7. Rights of the Trustee; Holders of Senior Indebtedness................ 45
SECTION 13.8. Subordination May Not Be Impaired.................................... 45
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1. Effect on Successors and Assigns..................................... 46
SECTION 14.2. Actions by Successor................................................. 46
SECTION 14.3. Surrender of Company Powers.......................................... 46
SECTION 14.4. Notices.............................................................. 46
SECTION 14.5. Governing Law........................................................ 46
SECTION 14.6. Treatment of the Debt Securities as Debt............................. 46
SECTION 14.7. Compliance Certificates and Opinions................................. 47
SECTION 14.8. Payments on Business Days............................................ 47
SECTION 14.9. Conflict with Trust Indenture Act.................................... 47
SECTION 14.10. Counterparts......................................................... 47
SECTION 14.11. Separability......................................................... 47
SECTION 14.12. Assignment........................................................... 48
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SECTION OF
TRUST INDENTURE ACT SECTION OF
OF 1939, AS AMENDED INDENTURE
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310(a)..................................................................... 7.9
310(b)..................................................................... 7.8
................................................................... 7.10
310(c)..............................................................Inapplicable
311(a).................................................................. 7.13(a)
311(b).................................................................. 7.13(b)
311(c)..............................................................Inapplicable
312(a)..................................................................... 5.1
................................................................. 5.2(a)
312(b)................................................................... 5.2(b)
312(c)................................................................... 5.2(c)
313(a)................................................................... 5.4(a)
313(b)................................................................... 5.4(b)
313(c)................................................................... 5.4(a)
................................................................. 5.4(b)
313(d)................................................................... 5.4(c)
314(a)..................................................................... 5.3
314(b)..............................................................Inapplicable
314(c)..................................................................... 14.6
314(d)..............................................................Inapplicable
314(e)..................................................................... 14.6
314(f)..............................................................Inapplicable
315(a)................................................................... 7.1(a)
................................................................... 7.2
315(b)..................................................................... 6.7
315(c)..................................................................... 7.1
315(d)................................................................... 7.1(b)
................................................................. 7.1(c)
315(e)..................................................................... 6.7
316(a)..................................................................... 6.6
................................................................... 8.4
316(b)..................................................................... 6.4
316(c)..................................................................... 8.1
317(a)..................................................................... 6.2
317(b)..................................................................... 4.3
318(a)..................................................................... 14.8
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture and shall not have any bearing on the
interpretation of its terms or provisions.
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THIS INDENTURE, dated as of ________________, 199__, between XXXXX
INDUSTRIES, INC., an Indiana corporation (the "Company"), and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, not in its individual capacity but
solely as trustee (the "Trustee"):
RECITALS OF THE COMPANY
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 "Debt Securities"), to
be issued in one or more series as provided in this Indenture. This Indenture
is subject to the provisions of the Trust Indenture Act of 1939, as amended,
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions. All things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all holders of the Debt Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions of Terms.
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The terms defined in this Section (except as otherwise expressly
provided in this Indenture or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the plural
as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or by reference therein
in the Securities Act of 1933, as amended (except as otherwise expressly
provided in this Indenture or unless the context otherwise requires), shall have
the meanings assigned to such terms in the Trust Indenture Act and in the
Securities Act as in force at the date of the execution of this instrument.
"Affiliate" means, with respect to a specified Person, (a) any Person
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directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Xxxxx Trust" means Xxxxx Capital I, a Delaware business trust, or any
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similar trust created for the purpose of issuing preferred securities in
connection with the issuance of Debt Securities under this Indenture.
"Authenticating Agent" means an authenticating agent with respect to
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all or any of the series of Debt Securities appointed with respect to all or
such series of the Debt Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
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federal or state law for the relief of debtors.
"Board of Directors" means the board of directors of the Company, or
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any duly authorized committee of such board.
"Board Resolution" means a copy of a resolution certified by the
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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.
"Business Day" means, with respect to any series of Debt Securities,
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any day other than a day on which federal or state banking institutions in New
York, New York or Wilmington, Delaware are authorized or required by law,
executive order or regulation to close.
"Capital Securities" means undivided beneficial interests in the
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assets of an Xxxxx Trust which rank pari passu with Common Securities issued by
such Xxxxx Trust; provided, however, that upon the occurence of an Event of
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Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Capital Securities.
"Capital Securities Guarantee" means any guarantee that the Company
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may enter into with Wilmington Trust Company or any other Person or Persons that
operates directly or indirectly for the benefit of holders of Capital Securities
of an Xxxxx Trust.
"Certificate" means a certificate signed by the principal executive
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officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company. The Certificate need not comply with the
provisions of Section 14.7.
"Commission" means the United States Securities and Exchange
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Commission, or any successor agency thereto.
"Common Securities" means undivided beneficial interests in the assets
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of an Xxxxx Trust which rank pari passu with Capital Securities issued by such
Xxxxx Trust; provided, however, that upon the occurrence of an Event of Default,
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the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and maturity are
subordinated to the rights of holders of Capital Securities.
"Common Securities Guarantee" means any guarantee that the Company may
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enter into with an Xxxxx Trust or any other Person or Persons that operates
directly or indirectly for the benefit of holders of Common Securities of an
Xxxxx Trust.
"Company" means Xxxxx Industries, Inc., a corporation duly organized
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and existing under the laws of the State of Indiana, and, subject to the
provisions of Article X, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which, at
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any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at Xxxxxx Square North,
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Trust Department.
"Custodian" means any receiver, trustee, assignee, liquidator, or
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similar official under any Bankruptcy Law.
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"Debt Securities" means the Debt Securities authenticated and delivered
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under this Indenture.
"Declaration" means, with respect to an Xxxxx Trust, the amended and
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restated declaration of trust of such Xxxxx Trust or any other governing
instrument of such Xxxxx Trust.
"Default" means any event, act or condition that with notice or lapse
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of time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.3.
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"Depositary" means, with respect to Debt Securities of any series for
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which the Company shall determine that such Debt Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.1 or 2.11.
"Event of Default" means, with respect to Debt Securities of a
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particular series, any event specified in Section 6.1, continued for the period
of time, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Global Security" means, with respect to any series of Debt Securities,
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a Debt Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
this Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" means securities that are (i) direct
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obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America that, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the holder of
such depositary receipt; provided, however, that (except as required by law)
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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 Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"Guarantees" mean the Capital Securities Guarantee and the Common
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Securities Guarantee.
"Herein", "hereof" and "hereunder", and other words of similar import,
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refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
"Indenture" means this instrument as originally executed or as it may
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from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof and shall
include the form and terms of particular series of Debt Securities established
as contemplated hereunder.
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"Institutional Trustee" has the meaning set forth in the Declaration of
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the applicable Xxxxx Trust.
"Interest Payment Date", when used with respect to any installment of
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interest on a Debt Security of a particular series, means the date specified in
such Debt Security or in a Board Resolution, an Officers' Certificate or an
indenture supplemental hereto with respect to such series as the fixed date on
which an installment of interest with respect to Debt Securities of that series
is due and payable.
"Officers' Certificate" means a certificate signed by the President or
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any Vice President and by the Treasurer or an Assistant Treasurer or the
Controller or an Assistant Controller or the Secretary or an Assistant Secretary
of the Company that is delivered to the Trustee in accordance with the terms
hereof. Each such certificate shall include the statements provided for in
Section 14.7, if and to the extent required by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing of legal counsel, who
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may be an employee of or counsel for the Company, that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include the
statements provided for in Section 14.7, if and to the extent required by the
provisions of such Section.
"Outstanding", when used with reference to Debt Securities of any
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series, means, subject to the provisions of Section 8.4, as of any particular
time, all Debt Securities of that series theretofore authenticated and delivered
by the Trustee under this Indenture, except (a) Debt Securities theretofore
canceled by the Trustee or any paying agent, or delivered to the Trustee or any
paying agent for cancellation or that have previously been canceled; (b) Debt
Securities or portions thereof for the payment or redemption of which moneys or
Governmental Obligations in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent); provided, however, that if such Debt
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Securities or portions of such Debt Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as provided in
Section 3.2, or provision satisfactory to the Trustee shall have been made for
giving such notice; (c) Debt Securities in lieu of or in substitution for which
other Debt Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.7; and (d) Debt Securities, except to the extent provided
in Sections 11.1 and 11.2, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article XI.
"Person" means any individual, corporation, partnership, limited
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liability company, joint venture, joint-stock company, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means every
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previous Debt Security evidencing all or a portion of the same debt and
guarantee as that evidenced by such particular Debt Security; and, for the
purposes of this definition, any Debt Security authenticated and delivered under
Section 2.7 in lieu of a lost, destroyed or stolen Debt Security shall be deemed
to evidence the same debt as the lost, destroyed or stolen Debt Security.
4
"Responsible Officer," when used with respect to the Trustee, means the
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chairman or any vice-chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the Treasurer, any assistant treasurer, any trust officer or
assistant trust officer or other officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended from time
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to time, or any successor legislation.
"Securityholder", "Holder of Debt Securities", "Registered Holder", or
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other similar term, means the Person or Persons in whose name or names a
particular Debt Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"Security Register" and "Security Registrar" have the respective
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meanings set forth in Section 2.5.
"Senior Indebtedness" means, with respect to the Company, (i) the
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principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by the Company, (ii) all
capital lease obligations of the Company, (iii) all obligations of the Company
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of the Company and all obligations of the Company under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction; (v) all obligations of the type referred
to in clauses (i) through (iv) of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise, (vi) all
obligations of the type referred to in clauses (i) through (v) of other Persons
secured by any lien on any property or asset of the Company (whether or not such
obligation is assumed by the Company), and (vii) all obligations of the Company
under guarantees in respect of operating lease payments of its Subsidiaries or
under guarantees in respect of the obligations of any trust, partnership or
other entity that has been or is established as a lease financing entity of the
Company ("a Lease Financing Entity") which guarantees were, in either case,
incurred in connection with the issuance by such Lease Financing Entity of
indebtedness or other securities, including without limitation all obligations
of the Company under that certain Guarantee Agreement dated as of July 27, 1995,
as amended from time to time, by the Company in favor of State Street Bank and
Trust Company of Connecticut, National Association, and under that certain
Guarantee Agreement dated as of November 28, 1995, as amended from time to time,
by the Company in favor of State Street Bank and Trust Company of Connecticut,
National Association; except in each case for (1) any such indebtedness that is
by its terms subordinated to or pari passu with the Debt Securities, and (2) any
indebtedness between or among the Company and its Affiliates, including all
other debt securities and guarantees in respect of those debt
5
securities (other than guarantees referred to in clause (vii) herein) issued to
any trust, or a trustee of such trust, partnership, or other entity affiliated
with the Company that is a financing entity of the Company (a "financing
entity") in connection with the issuance by such financing entity of securities
that are similar to the Capital Securities.
"Subsidiary" means, with respect to any Person, (i) any corporation at
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least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority of whose
outstanding partnership or similar interests shall at the time be owned by such
Person, or by one or more of its Subsidiaries, or by such Person and one or more
of its Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner.
"Trustee" means Wilmington Trust Company and, subject to the provisions
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of Article VII, shall also include its successors and assigns, and, if at any
time there is more than one Person acting in such capacity hereunder, "Trustee"
shall mean each such Person. The term "Trustee," as used with respect to a
particular series of Debt Securities, shall mean the trustee with respect to
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, subject to
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the provisions of Sections 9.1, 9.2 and 10.1, as in effect at the date of
execution of this instrument.
"Trust Securities" means Common Securities and Capital Securities.
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"Voting Stock", as applied to stock of any Person, means shares,
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interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF DEBT SECURITIES
SECTION 2.1. Designation and Terms of Debt Securities.
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The aggregate principal amount of Debt Securities that may be
authenticated and delivered under this Indenture is unlimited. The Debt
Securities may be issued in one or more series up to the aggregate principal
amount of Debt Securities of that series from time to time authorized by or
pursuant to a Board Resolution of the Company, or pursuant to one or more
indentures supplemental hereto. Prior to the initial issuance of Debt
Securities of any series, there shall be established in or pursuant to a Board
Resolution of the Company, and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto:
(a) the title of the series of Debt Security (which shall distinguish
the Debt Securities of that series from all other series of Debt Securities);
(b) any limit upon the aggregate principal amount of the Debt
Securities of that series that may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and
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delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of that series);
(c) the date or dates on which the principal of the Debt Securities of
that series is payable;
(d) the rate or rates at which the Debt Securities of that series shall
bear interest or the manner of calculation of such rate or rates, if any;
(e) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner of
determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(f) the right, if any, to defer the interest payment periods and the
duration of such extension;
(g) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Debt Securities of that series may be
redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase Debt
Securities of that series pursuant to any sinking fund or analogous provisions
(including payments made in cash in participation of future sinking fund
obligations) 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, Debt Securities of that series shall be redeemed or purchased, in whole
or in part, pursuant to such obligation;
(i) the form of the Debt Securities of that series, including the form
of the Certificate of Authentication for such series;
(j) if other than denominations of one thousand U.S. dollars ($1,000)
or any integral multiple thereof, the denominations in which the Debt Securities
of that series shall be issuable;
(k) whether the Debt Securities are issuable as a Global Security and,
in such case, the identity of the Depositary for such series; and
(l) any and all other terms with respect to such series (which terms
shall not be inconsistent with the terms of this Indenture), including any terms
which may be required by or advisable under United States laws or regulations or
advisable in connection with the marketing of Debt Securities of that series.
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any such Board Resolution or in any indentures supplemental hereto.
If any of the terms of a series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary
7
of the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
SECTION 2.2. Form of Debt Securities and Trustee's Certificate.
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The Debt Securities of any series and the Trustee's certificate of
authentication to be borne by such Debt Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution and as set forth in an Officers' Certificate,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which Debt Securities of that series may be listed, or
to conform to usage.
SECTION 2.3. Denominations; Provisions for Payment.
-------------------------------------
The Debt Securities shall be issuable as registered Debt Securities and
in the denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, subject to Section 2.1(j). The Debt Securities of a particular
series shall bear interest payable on the Interest Payment Dates and at the rate
specified with respect to that series. The principal of and the interest on the
Debt Securities of any series, as well as any premium thereon in case of
redemption thereof prior to maturity, shall be payable in the coin or currency
of the United States of America that at the time of such payment is legal tender
for public and private debt, at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, the City and State of New York.
Each Debt Security shall be dated the date of its authentication. Interest on
the Debt Securities shall be computed on the basis of a 360-day year composed of
twelve 30-day months.
The interest installment on any Debt Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series shall be paid to the Person in whose name said Debt
Security (or one or more Predecessor Debt Securities) is registered at the close
of business on the regular record date for such interest installment. In the
event that any Debt Security of a particular series or portion thereof is called
for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Debt Security will be paid upon presentation and
surrender of such Debt Security as provided in Section 3.3.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Debt
Securities of that series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on Debt
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Debt Securities) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Debt Security and the
8
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited 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 not be more than 15 nor
less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the 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
Securityholder at his or her address as it appears in the Security Register
not less than 10 days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Debt Securities (or their
respective Predecessor Debt Securities) are registered on such special
record date and shall be no longer payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest on any Debt
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debt Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustees of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
Unless otherwise provided in a Board Resolution, in an Officers'
Certificate or in one or more indentures supplemental hereto establishing the
terms of any series of Debt Securities pursuant to Section 2.1 hereof, the term
"regular record date" as used in this Section with respect to a series of Debt
Securities with respect to any Interest Payment Date for such series shall mean
either the fifteenth day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.1
shall occur, if such Interest Payment Date is the first day of a month, or the
last day of the month immediately preceding the month in which an Interest
Payment Date established for such series pursuant to Section 2.1 hereof shall
occur, if such Interest Payment Date is the fifteenth day of a month, whether or
not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Debt Security
of a series delivered under this Indenture upon transfer of or in exchange for
or in lieu of any other Debt Security of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other Debt
Security.
SECTION 2.4. Execution and Authentication.
----------------------------
The Debt Securities shall be signed on behalf of the Company by its
President or one of its Vice Presidents, under its corporate seal attested by
its Secretary or one of its Assistant Secretaries. Signatures may be in the form
of a manual or facsimile signature. The Company may use the facsimile signature
of any Person who shall have been President or Vice President thereof, or of any
Person who shall have been a Secretary or Assistant Secretary thereof,
notwithstanding the fact that at the time the Debt Securities shall be
authenticated and delivered or disposed of such Person shall have ceased to be
the President or a Vice President, or the Secretary or an Assistant Secretary,
of the Company. The seal of the
9
Company may be in the form of a facsimile of such seal and may be impressed,
affixed, imprinted or otherwise reproduced on the Debt Securities. The Debt
Securities may contain such notations, legends or endorsements required by law,
stock exchange rule or usage. Each Debt Security shall be dated the date of its
authentication by the Trustee.
A Debt Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, together with a written order
of the Company for the authentication and delivery of such Debt Securities,
signed by its President or any Vice President and its Treasurer or any Assistant
Treasurer, and the Trustee in accordance with such written order shall
authenticate and deliver such Debt Securities.
In authenticating such Debt Securities and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture.
The Trustee shall not be required to authenticate such Debt Securities
if the issue of such Debt Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
SECTION 2.5. Registration of Transfer and Exchange.
-------------------------------------
(a) Debt Securities of any series may be exchanged upon presentation
thereof at the Corporate Trust Office or such other location designated by the
Company pursuant to Section 4.2 for other Debt Securities of such series of
authorized denominations, and for a like aggregate principal amount, upon
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In respect of any Debt
Securities so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange therefor
the Debt Security or Debt Securities of the same series that the Securityholder
making the exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at the Corporate Trust
Office or such other location designated by the Company pursuant to Section 4.2
a register or registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Debt Securities and the transfers of Debt Securities as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering Debt
Securities and the transfer of Debt Securities as herein provided shall be
appointed as authorized by a Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Debt Security at the Corporate Trust
Office or such other location designated by the Company pursuant to Section 4.2,
the Company shall execute, the Trustee shall
10
authenticate, and such office or agency shall deliver in the name of the
transferee or transferees a new Debt Security or Debt Securities of the same
series as the Debt Security presented for a like aggregate principal amount.
All Debt Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied (if
so required by the Company or the Security Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company or the Security
Registrar, duly executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration of
transfer of Debt Securities, or issue of new Debt Securities in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.6, Section 3.3(b) and Section 9.4 not
involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debt Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Debt Securities of the same series
and ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Debt Securities of any series or
portions thereof called for redemption. The provisions of this Section 2.5 are,
with respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.6. Temporary Securities.
--------------------
Pending the preparation of definitive Debt Securities of any series,
the Company may execute, and the Trustee shall authenticate and deliver,
temporary Debt Securities (printed, lithographed or typewritten) of any
authorized denomination. Such temporary Debt Securities shall be substantially
in the form of the definitive Debt Securities in lieu of which they are issued,
but with such omissions, insertions and variations as may be appropriate for
temporary Debt Securities, all as may be determined by the Company. Every
temporary Debt Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Debt Securities of such
series. Without unnecessary delay the Company will execute and furnish
definitive Debt Securities of such series and thereupon any or all temporary
Debt Securities of such series may be surrendered in exchange therefor (without
charge to the holders), at the Corporate Trust Office or such location
designated by the Company pursuant to Section 4.2, and the Trustee shall
authenticate, and such Corporate Trust Office or location shall deliver, in
exchange for such temporary Debt Securities an equal aggregate principal amount
of definitive Debt Securities of such series, unless the Company advises the
Trustee to the effect that definitive Debt Securities need not be executed and
furnished until further notice from the Company. Until so exchanged, the
temporary Debt Securities of such series shall be entitled to the same benefits
under this Indenture as definitive Debt Securities of such series authenticated
and delivered hereunder.
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Debt Securities.
----------------------------------------------------
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company's request, the Trustee
(subject as aforesaid) shall authenticate and deliver, a new Debt Security of
the same series, bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated
11
Debt Security, or in lieu of and in substitution for the Debt Security so
destroyed, lost or stolen. In every case the applicant for a substituted Debt
Security shall furnish to the Company and the Trustee such security or indemnity
as may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee evidence to their satisfaction of the destruction, loss or theft of
the applicant's Debt Security and of the ownership thereof. The Trustee may
authenticate any such substituted Debt Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the
issuance of any substituted Debt Security, 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. In case any Debt Security that
has matured or is about to mature shall become mutilated or be destroyed, lost
or stolen, the Company may, instead of issuing a substitute Debt Security, pay
or authorize the payment of the same (without surrender thereof except in the
case of a mutilated Debt Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as they may
require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Debt Security and of the ownership thereof.
Every replacement Debt Security issued pursuant to the provisions of
this Section shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Debt Security
shall be found at any time, or be enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Debt Securities of the same series duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities, and shall preclude (to the
extent lawful) any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.8. Cancellation.
------------
All Debt Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any
paying agent, be delivered to the Trustee for cancellation, or, if surrendered
to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly required or permitted by any of the
provisions of this Indenture. On request of the Company at the time of such
surrender, the Trustee shall deliver to the Company canceled Debt Securities
held by the Trustee. In the absence of such request the Trustee may dispose of
canceled Debt Securities in accordance with its standard procedures and deliver
a certificate of disposition to the Company. If the Company shall otherwise
acquire any of the Debt Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.9. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Debt Securities, express or
implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Debt Securities (and, with respect to the
provisions of Article XIII, the holders of Senior Indebtedness) any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto and
12
of the holders of the Debt Securities (and, with respect to the provisions of
Article XIII, the holders of Senior Indebtedness).
SECTION 2.10. Authenticating Agent.
--------------------
So long as any of the Debt Securities of any series remain Outstanding,
there may be an Authenticating Agent for any or all such series of Debt
Securities which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debt Securities of such series issued upon exchange, transfer or
partial redemption thereof, and Debt Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Debt Securities by the Trustee shall be
deemed to include authentication by an Authenticating Agent for such series.
Each Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and that is otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by federal or state authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. Global Securities.
-----------------
(a) If the Company shall establish pursuant to Section 2.1 that the
Debt Securities of a particular series are to be issued as a Global Security or
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with Section 2.4, authenticate and deliver, a Global Security or
Global Securities that (i) shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the Outstanding Debt
Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debt Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Except as provided in clause (c), notwithstanding the provisions of
Section 2.5, the Global Security or Global Securities of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.5,
only to another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee
of such successor Depositary.
13
(c) If at any time the Depositary for a series of the Debt Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, at a time when the Depositary is required to be so
registered to act as such Depositary and a successor Depositary for such series
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, this Section 2.11
shall no longer be applicable to the Debt Securities of such series and the
Company will execute, and subject to Section 2.5, the Trustee will authenticate
and deliver the Debt Securities of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Security or Global Securities
of such series in exchange for such Global Security or Global Securities. In
addition, the Company may at any time determine that the Debt Securities of any
series shall no longer be represented by a Global Security or Global Securities
and that the provisions of this Section 2.11 shall no longer apply to the Debt
Securities of such series. In such event, the Company will execute and, subject
to Section 2.5, the Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and deliver the Debt
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security or Global Securities of such series in
exchange for such Global Security or Global Securities. Upon the exchange of
the Global Security or Global Securities for such Debt Securities in definitive
registered form without coupons, in authorized denominations, the Global
Security or Global Securities shall be canceled by the Trustee. Such Debt
Securities in definitive registered form issued in exchange for the Global
Security or Global Securities pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Debt Securities to
the Depositary for delivery to the Persons in whose names such Debt Securities
are so registered.
ARTICLE III
REDEMPTION OF DEBT SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.1. Redemption.
----------
The Company may redeem the Debt Securities of any series issued
hereunder on and after the dates and in accordance with the terms established
for such series pursuant to Section 2.1.
SECTION 3.2. Notice of Redemption.
--------------------
(a) In case the Company shall desire to exercise such right to redeem
all or, as the case may be, a portion of the Debt Securities of any series in
accordance with the right reserved so to do, the Company shall, or shall cause
the Trustee to, give notice of such redemption to holders of the Debt Securities
of such series to be redeemed by mailing, first class postage prepaid, a notice
of such redemption not less than 30 days and not more than 60 days before the
date fixed for redemption of that series to such holders at their last addresses
as they shall appear upon the Security Register unless a shorter period is
specified in the Debt Securities to be redeemed. Any notice that is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the registered holder receives the notice. In any case,
failure duly to give such notice to the holder of any Debt Security of any
series designated for redemption in whole or in part, or any defect in the
notice, shall not affect the validity of the proceedings for the redemption of
any other Debt Securities of such series or any other series. In the case of
any redemption
14
of Debt Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Debt Securities or elsewhere in this Indenture,
the Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Debt Securities of that series are
to be redeemed, and shall state that payment of the redemption price of such
Debt Securities to be redeemed will be made at the Corporate Trust Office, upon
presentation and surrender of such Debt Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from
and after said date interest will cease to accrue and that the redemption is for
a sinking fund, if such is the case. If less than all the Debt Securities of a
series are to be redeemed in whole or in part, the notice to the holders of Debt
Securities of that series to be redeemed shall specify the particular Debt
Securities to be so redeemed. In case any Debt Security is to be redeemed in
part only, the notice that relates to such Debt Security shall state the portion
of the principal amount thereof to be redeemed and shall state that on and after
the redemption date, upon surrender of such Debt Security, a new Debt Security
or Debt Securities of such series in principal amount equal to the unredeemed
portion thereof will be issued.
(b) If less than all the Debt Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in advance
of the date fixed for redemption as to the aggregate principal amount of Debt
Securities of the series to be redeemed, and thereupon the Trustee shall select,
by lot or in such other manner as it shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions
(equal to one thousand U.S. dollars ($1,000) or any integral multiple thereof)
of the principal amount of such Debt Securities of a denomination larger than
$1,000, the Debt Securities to be redeemed and shall thereafter promptly notify
the Company in writing of the numbers of the Debt Securities to be redeemed, in
whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its President or any Vice President,
instruct the Trustee or any paying agent to call all or any part of the Debt
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.3. Payment Upon Redemption.
-----------------------
(a) If the giving of notice of redemption shall have been completed as
above provided, the Debt Securities or portions of Debt Securities of the series
to be redeemed specified in such notice shall become due and payable on the date
and at the place stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and interest on
such Debt Securities or portions of Debt Securities shall cease to accrue on and
after the date fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect to any such
Debt Security or portion thereof. On presentation and surrender of such Debt
Securities on or after the date fixed for redemption at the place of payment
specified in the notice, said Debt Securities shall be paid and redeemed at the
applicable redemption price for such series, together with interest accrued
thereon to the date
15
fixed for redemption (but if the date fixed for redemption is an Interest
Payment Date, the interest installment payable on such date shall be payable to
the registered holder at the close of business on the applicable record date
pursuant to Section 2.3).
(b) Upon presentation of any Debt Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debt Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 3.4. Sinking Fund.
-------------
The provisions of Sections 3.4, 3.5 and 3.6 shall be applicable to any
sinking fund for the retirement of Debt Securities of a series, except as
otherwise specified as contemplated by Section 2.1 for Debt Securities of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt 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 Debt Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Debt
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.5. Each sinking fund payment
shall be applied to the redemption of Debt Securities of any series as provided
for by the terms of Debt Securities of such series.
SECTION 3.5. Satisfaction of Sinking Fund Payments with Debt Securities.
----------------------------------------------------------
The Company (i) may deliver Outstanding Debt Securities of a series
(other than any Debt Securities previously called for redemption) and (ii) may
apply as a credit Debt Securities of a series that have been redeemed either at
the election of the Company pursuant to the terms of such Debt Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Debt Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Debt Securities of such
series required to be made pursuant to the terms of such Debt Securities as
provided for by the terms of such series, provided that such Debt Securities
have not been previously so credited. Such Debt Securities shall be received
and credited for such purpose by the Trustee at the redemption price specified
in such Debt Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.6. Redemption of Debt Securities for Sinking Fund.
----------------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
series of Debt Securities, the Company will deliver to the Trustee (i) an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting Debt
Securities of that series pursuant to Section 3.5, and the basis for such credit
and (ii) any Debt Securities to be so delivered. Not less than 30 days before
each such sinking fund payment date, the Trustee shall select the Debt
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.2 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 3.2. Such
16
notice having been duly given, the redemption of such Debt Securities shall be
made upon the terms and in the manner stated in Section 3.3.
ARTICLE IV
COVENANTS OF THE COMPANY
SECTION 4.1. Payment of Principal, Premium and Interest.
------------------------------------------
The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Debt Securities of each
series at the time and place and in the manner provided herein and established
with respect to such Debt Securities.
SECTION 4.2. Maintenance of Office or Agency.
-------------------------------
So long as any series of the Debt Securities remain Outstanding, the
Company agrees to maintain an office or agency with respect to each such series
at such location or locations as may be designated as provided in this Section
4.2, where (i) Debt Securities of that series may be presented for payment, (ii)
Debt Securities of that series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and demands to or upon
the Company in respect of the Debt Securities of that series and this Indenture
may be given or served, such designation to continue with respect to such office
or agency until the Company shall, by written notice signed by its President or
a Vice President and delivered to the trustee, designate some other office or
agency for such purposes or any of them. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
notices and demands.
SECTION 4.3. Paying Agents.
-------------
(a) If the Company shall appoint one or more paying agents for all or
any series of the Debt Securities, other than the Trustee, the Company will
cause each such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section:
(1) that it will hold all sums held by it as such agent for the payment
of the principal of (and premium, if any) or interest on the Debt
Securities of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Debt Securities) in trust for the
benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor of such Debt Securities) to make any payment of
the principal of (and premium, if any) or interest on the Debt Securities
of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
17
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Company shall act as its own paying agent with respect to
any series of the Debt Securities, it will on or before each due date of the
principal of (and premium, if any) or interest on Debt Securities of that
series, set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal (and premium, if any) or
interest so becoming due on Debt Securities of that series until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of such action, or any failure (by it or any other
obligor on such Debt Securities) to take such action. Whenever the Company
shall have one or more paying agents for any series of Debt Securities, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Debt Securities of that series, deposit with the paying agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such paying agent is the
Trustee) the Company will promptly notify the Trustee of this action or failure
so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.5, and (ii) 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 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 terms and conditions as those upon which such sums were
held by the Company or such paying agent; and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further
liability with respect to such money.
SECTION 4.4. Appointment to Fill Vacancy in Office of Trustee.
------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.5. Compliance with Consolidation Provisions.
----------------------------------------
The Company will not, while any of the Debt Securities remain
Outstanding, consolidate with, or merge into, any other company or merge any
other company into itself, or sell or convey all or substantially all of its
property to any other company unless the provisions of Article X are complied
with.
SECTION 4.6. Limitation on Dividends.
-----------------------
If Debt Securities are issued to an Xxxxx Trust or a trustee of such
trust in connection with the issuance of Trust Securities by such Xxxxx Trust
and (a) there shall have occurred any event that would constitute an Event of
Default, or (b) the Company shall be in default with respect to its payment of
any obligations under the Capital Securities Guarantee or Common Securities
Guarantee relating to such Trust Securities, or (c) the Company shall have given
notice of its election to defer payments of interest on Debt Securities by
extending the interest payment period as provided in the Board Resolution and
Officers' Certificate or indenture supplemental hereto establishing such series
of Debt Securities, and such period, or any extension thereof, shall be
continuing, then (x) the Company shall not declare or pay any dividend on, make
any distribution with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (i)
repurchases or acquisitions of the Company's common
18
shares as contemplated by any employment arrangement, benefit plan or other
similar contract with or for the benefit of employees, officers or directors
entered into in the ordinary course of business, (ii) as a result of an exchange
or conversion of any class or series of the Company's capital stock for the
Company's common shares, provided that such class or series of the Company's
capital stock was outstanding prior to the occurrence of such Event of Default
or the date upon which the Company gives notice of its election to extend the
interest payment period, as applicable, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such Company capital stock or the security being
converted or exchanged, provided that such Company capital stock or security was
outstanding prior to the occurrence of such Event of Default or the date upon
which the Company gives notice of its election to extend the interest payment
period, as applicable, or (iv) the payment of any stock dividend where the
dividend is paid in the form of the same stock as that on which the dividend is
paid), (y) the Company shall not directly or indirectly, and shall not allow any
of its Subsidiaries to, make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by the Company
that rank pari passu with or junior to the Debt Securities, and (z) the Company
shall not make guarantee payments with respect to the foregoing (other than
pursuant to the Capital Securities Guarantee).
SECTION 4.7. Covenants as to Xxxxx Trusts.
----------------------------
In the event Debt Securities are issued to an Xxxxx Trust in connection
with the issuance of Trust Securities by such Xxxxx Trust, for so long as such
Trust Securities remain outstanding, the Company will (i) maintain 100% direct
or indirect ownership of the Common Securities of such Xxxxx Trust; provided,
--------
however, that any permitted successor of the Company under this Indenture may
-------
succeed to the Company's ownership of the Common Securities, (ii) not cause, as
sponsor of such Xxxxx Trust, or permit, as holder of Common Securities of such
Xxxxx Trust, the dissolution, winding-up or termination of such Xxxxx Trust,
except in connection with a distribution of Debt Securities as provided in the
Declaration and in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration, and (iii) use its reasonable efforts
to cause such Xxxxx Trust (a) to remain a statutory business trust, except in
connection with a distribution of Debt Securities to holders of Trust Securities
upon dissolution of such Xxxxx Trust, the redemption of all of the Trust
Securities of such Xxxxx Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Xxxxx Trust, and (b)
to otherwise continue to be classified for United States federal income tax
purposes as a grantor trust.
SECTION 4.8. Corporate Existence.
-------------------
The Company will, subject to the provisions of Article X, at all times
maintain its corporate existence and right to carry on business and will duly
procure all renewals and extensions thereof, and, to the extent necessary or
desirable in the operation of its business, will use its best efforts to
maintain, preserve and renew all of its rights, powers, privileges and
franchises.
SECTION 4.9. Notice of Default.
-----------------
The Company shall file with the Trustee written notice of any Event of
Default within 30 Business Days of its becoming aware of such Event of Default.
ARTICLE V
SECURITYHOLDERS, LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 5.1. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Securityholders.
---------------
The Company will furnish or cause to be furnished to the Trustee (a) on
each regular record date (as defined in Section 2.3) a list, in such form as the
Trustee may reasonably require, of the names and addresses of the holders of
each series of Debt Securities as of such regular record date, provided,
--------
however, the Company shall not be obligated to furnish or cause such list to be
-------
furnished at any time that the list shall not differ in any respect from the
most recent list furnished to the Trustee by the Company and (b) at such
19
other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that in either case, no such list need be furnished for any
-------- -------
series for which the Trustee shall be the Security Registrar.
SECTION 5.2. Preservation Of Information; Communications With
------------------------------------------------
Securityholders.
---------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
Debt Securities contained in the most recent list furnished to it as provided in
Section 5.1 and as to the names and addresses of holders of Debt Securities
received by the Trustee in its capacity as Security Registrar (if acting in such
capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.1 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to their rights
under this Indenture or under the Debt Securities.
SECTION 5.3. Reports By the Company.
----------------------
(a) The Company covenants and agrees to file with the Trustee, within
15 days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of such sections, then to file with the
Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports that may be required pursuant to
Section 13 of the Exchange Act, in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or reputable overnight delivery service that provides for
evidence of receipt, to the Securityholders, as their names and addresses appear
upon the Security Register, within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subsections (a) and (b) of this Section as may
be required by rules and regulations prescribed from time to time by the
Commission.
20
SECTION 5.4. Reports by the Trustee.
----------------------
(a) On or before July 15 in each year in which any of the Debt
Securities are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Securityholders, as their names and addresses appear
upon the Security Register, a brief report dated as of the preceding May 15, if
and to the extent required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Debt Securities are listed (if so listed) and also with
the Commission. The Company agrees to notify the Trustee when any Debt
Securities become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.1. Events of Default.
-----------------
(a) Whenever used herein with respect to Debt Securities of a
particular series, "Event of Default" means any one or more of the following
events that has occurred and is continuing:
(1) the Company defaults in the payment of any installment of interest
upon any of the Debt Securities of that series, as and when the same shall
become due and payable, and continuance of such default for a period of 30
days; provided, however, that a valid extension of an interest payment
-------- -------
period by the Company in accordance with the terms of the Debt Securities
of that series shall not constitute a default in the payment of interest
for this purpose;
(2) the Company defaults in the payment of the principal of (or
premium, if any, on) any of the Debt Securities of that series as and when
the same shall become due and payable whether at maturity, upon redemption,
by declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series;
(3) the Company fails to observe or perform any other of its covenants
or agreements with respect to that series contained in this Indenture or
otherwise established with respect to that series of Debt Securities
pursuant to Section 2.1 for a period of 90 days after the date on which
written notice of such failure, requiring the same to be remedied and
stating that such notice is a "Notice of Default" hereunder, shall have
been given to the Company by the Trustee, by registered or certified mail,
or to the Company and the Trustee by the holders of at least 25% in
principal amount of the Debt Securities of that series at the time
Outstanding;
(4) the Company, pursuant to or within the meaning of any Bankruptcy
Law, (i) commences a voluntary case, (ii) consents to the entry of an order
for relief against it in an
21
involuntary case, (iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property or (iv) makes a general
assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order under any
Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company for all or substantially all
of its property, or (iii) orders the liquidation of the Company, and the
order or decree remains unstayed and in effect for 90 days; or
(6) in the event Debt Securities are issued to an Xxxxx Trust or a
trustee of such trust in connection with the issuance of Trust Securities
by such Xxxxx Trust, such Xxxxx Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or otherwise terminated its
existence, except in connection with (i) the distribution of Debt
Securities to holders of Trust Securities in liquidation of their interests
in such Xxxxx Trust, (ii) the redemption of all outstanding Trust
Securities of such Xxxxx Trust, and (iii) mergers, consolidations or
amalgamations, each as permitted by the Declaration of such Xxxxx Trust.
(b) If an Event of Default described in clauses 1, 2, 3 or 6 of this
Section 6.1 with respect to Debt Securities of any series at the time
outstanding occurs and is continuing, unless the principal of all the Debt
Securities of that series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Debt Securities of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee, if given by such Securityholders), may
declare the principal of all the Debt Securities of that series to be
immediately due and payable, and upon any such declaration the same shall become
and be immediately due and payable, notwithstanding anything contained in this
Indenture or in the Debt Securities of that series or established with respect
to that series pursuant to Section 2.1 to the contrary. If an Event of Default
specified in clause (4) or (5) of Section 6.1(a) occurs or is continuing, then
the principal amount of all the Debt Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholder.
(c) At any time after the principal of the Debt Securities of that
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the holders of a majority in aggregate principal amount of
the Debt Securities of that series then Outstanding hereunder, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if: (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Debt
Securities of that series and the principal of (and premium, if any, on) any and
all Debt Securities of that series that shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and, to the
extent that such payment is enforceable under applicable law, upon overdue
installments of interest, at the rate per annum expressed in the Debt Securities
of that series to the date of such payment or deposit) and the amount payable to
the Trustee under Section 7.6, and (ii) any and all Events of Default with
respect to such series, other than the nonpayment of principal on Debt
Securities of that series that shall not have become due by their terms, shall
have been remedied or waived as provided in Section 6.6. No such rescission and
annulment shall extend to or shall affect any subsequent default or impair any
right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with
respect to Debt Securities of that series under this Indenture and such
proceedings shall have been discontinued or
22
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had been
taken.
SECTION 6.2. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Debt Securities of a
series, or any payment required by any sinking or analogous fund established
with respect to that series as and when the same shall have become due and
payable, and such default shall have continued for a period of 90 days, or (2)
in case it shall default in the payment of the principal of (or premium, if any,
on) any of the Debt Securities of a series when the same shall have become due
and payable, whether upon maturity of the Debt Securities of a series or upon
redemption or upon declaration or otherwise, then, upon demand of the Trustee,
the Company will pay to the Trustee, for the benefit of the holders of the Debt
Securities of that series, the whole amount that then shall have become due and
payable on all such Debt Securities for principal (and premium, if any) or
interest, or both, as the case may be, with interest upon the overdue principal
(and premium, if any) and (to the extent that payment of such interest is
enforceable under applicable law and, if the Debt Securities are held by an
Xxxxx Trust, without duplication of any other amounts paid by such Xxxxx Trust
in respect thereof) upon overdue installments of interest at the rate per annum
expressed in the Debt Securities of that series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection and the amount payable to the Trustee under Section 7.6.
(b) If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the Debt
Securities of that series and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or
other obligor upon the Debt Securities of that series, wherever situated.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or judicial proceedings
affecting the Company or its creditors or property, the Trustee shall have power
to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Debt Securities of such series allowed for the entire amount due and
payable by the Company under this Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.6; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Debt Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the
making of such payments directly to such Securityholders, to pay to the Trustee
any amount due it under Section 7.6.
(d) All rights of action and of asserting claims under this Indenture,
or under any of the terms established with respect to Debt Securities of that
series, may be enforced by the Trustee without the
23
possession of any of such Debt Securities, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for payment
to the Trustee of any amounts due under Section 7.6, be for the ratable benefit
of the holders of the Debt Securities of such series.
In case of an Event of Default, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities of that series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 6.3. Application of Moneys Collected.
-------------------------------
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Debt Securities shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Debt Securities of that series, and notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.6;
SECOND: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article XIII; and
THIRD: To the payment of the amounts then due and unpaid upon Debt
Securities of such series for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Debt Securities for principal (and
premium, if any) and interest, respectively.
SECTION 6.4. Limitation on Suits.
-------------------
(a) No holder of any Debt Security of any series shall have any right
by virtue or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to the Debt Securities of such series specifying such Event of
Default, as hereinbefore provided; (ii) the holders of not less than 25% in
aggregate principal amount of the Debt Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as trustee hereunder; (iii) such
holder or
24
holders shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby; (iv) the Trustee, for 60 days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such action, suit or
proceeding; and (v) during such 60 day period, the holders of not less than a
majority in principal amount of the Debt Securities of that series do not give
the Trustee a direction inconsistent with the request.
(b) Notwithstanding anything contained herein to the contrary or any
other provisions of this Indenture, the right of any holder of any Debt Security
to receive payment of the principal of (and premium, if any) and interest on
such Debt Security, as therein provided, on or after the respective due dates
expressed in such Debt Security (or in the case of redemption, on the redemption
date), or to institute suit for the enforcement of any such payment on or after
such respective dates or redemption date, shall not be impaired or affected
without the consent of such holder, and by accepting a Debt Security hereunder
it is expressly understood, intended and covenanted by the taker and holder of
every Debt Security of such series with every other such taker and holder and
the Trustee, that no one or more holders of Debt Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Debt Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all holders of Debt Securities of such series. For
the protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
(c) Notwithstanding any provision of this Indenture to the contrary, in
the event that the Institutional Trustee, as the holder of record of Debt
Securities of any series held by an Xxxxx Trust, fails to enforce its rights
with respect to such Debt Securities under the Indenture, any holder of
Capital Securities may, to the fullest extent permitted by law, institute legal
proceedings directly against the Company to enforce the Institutional Trustee's
rights under the Indenture without first instituting proceedings against the
Institutional Trustee or any other person or entity. In addition, if an Event of
Default under the Declaration has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest, principal, or other
required payments on Debt Securities issued to an Xxxxx Trust on the date such
interest, principal or other required payment is otherwise payable (or, in the
case of redemption, on the redemption date), then a holder of record of the
Capital Securities may directly institute a proceeding against the Company for
enforcement of payment to such holder of the principal, interest or other
required payment on Debt Securities having a principal amount equal to the
liquidation amount of the Capital Securities held by such holder on or after the
respective due dates specified in the Debt Securities. In connection with such
proceeding, the Company will be subrogated to the rights of such record holder
of Capital Securities to the extent of any payment made by the Company to such
holder of Capital Securities in such proceeding.
SECTION 6.5. Rights and Remedies Cumulative; Delay or Omission Not Waiver.
------------------------------------------------------------
(a) Except as otherwise provided in Section 2.7, all powers and
remedies given by this Article to the Trustee or to the Securityholders shall,
to the extent permitted by law, be deemed cumulative and not exclusive of any
other powers and remedies available to the Trustee or the holders of the Debt
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such Debt Securities.
25
(b) No delay or omission of the Trustee or of any holder of any of the
Debt Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.4, every power
and remedy given by this Article or by law to the Trustee or the Securityholders
may be exercised from time to time, and as often as shall be deemed expedient,
by the Trustee or by the Securityholders.
SECTION 6.6. Control by Securityholders.
--------------------------
The holders of a majority in aggregate principal amount of the Debt
Securities of any or all series affected (voting as a class) at the time
Outstanding, determined in accordance with Section 8.4, shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to such series; provided, however, that such direction
-------- -------
shall not be in conflict with any rule of law or with this Indenture or be
unduly prejudicial to the rights of holders of Debt Securities of any other
series at the time Outstanding determined in accordance with Section 8.4.
Subject to the provisions of Section 7.1, the Trustee shall have the right to
decline to follow any such direction if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability. The
holders of a majority in aggregate principal amount of the Debt Securities of
any series at the time Outstanding affected thereby, determined in accordance
with Section 8.4, may on behalf of the holders of all of the Debt Securities of
such series waive any past default in the performance of any of the covenants
contained herein or established pursuant to Section 2.1 with respect to such
series and its consequences, except (i) a default in the payment of the
principal of, or premium, if any, or interest on, any of the Debt Securities of
that series as and when the same shall become due by the terms of such Debt
Securities otherwise than by acceleration (unless such default has been cured
and a sum sufficient to pay all matured installments of interest and principal
and any premium has been deposited with the Trustee (in accordance with Section
6.1(c)), or (ii) a default in the covenants contained in Section 4.6. Upon any
such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Debt Securities of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.7. Undertaking to Pay Costs.
------------------------
All parties to this Indenture agree, and each holder of any Debt
Securities by such holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding more than 10% in aggregate principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Debt Security of such series, on or after
the respective due dates expressed in such Debt Security or established pursuant
to this Indenture.
26
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities of Trustee.
----------------------------------------------
(a) The Trustee, prior to the occurrence of an Event of Default with
respect to the Debt Securities of a series and after the curing of all Events of
Default with respect to the Debt Securities of that series that may have
occurred, shall undertake to perform with respect to the Debt Securities of such
series such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to the Debt Securities of
a series has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Debt Securities of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) no provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to
the Debt Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series that may have occurred:
(A) the duties and obligations of the Trustee shall, with respect
to the Debt Securities of such series, be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable with respect to the Debt Securities of such series except for
the performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(B) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to the Debt Securities of such series
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirement of this
Indenture;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the holders of not less than a majority in principal amount of the Debt
Securities of any series at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee
under this Indenture with respect to the Debt Securities of that series;
and
27
(4) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it.
SECTION 7.2. Certain Rights of Trustee.
-------------------------
Except as otherwise provided in Section 7.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, security or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an Officers'
Certificate (unless other evidence in respect thereof is specifically prescribed
herein);
(c) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted hereunder in
good faith and in reliance thereon;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that may be incurred therein or thereby; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an Event
of Default with respect to a series of the Debt Securities (that has not been
cured or waived) to exercise with respect to Debt Securities of that series such
of the rights and powers vested in it by this Indenture, and to use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs;
(e) the Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, security, or
other papers or documents, unless requested in writing so to do by the holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of the particular series affected thereby (determined as provided in
Section 8.4); provided, however, that if the payment within a reasonable time to
-------- -------
the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such costs,
28
expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such examination shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.3. Trustee Not Responsible for Recitals or Issuance of Debt
--------------------------------------------------------
Securities.
----------
(a) The recitals contained herein and in the Debt Securities shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities.
(c) The Trustee shall not be accountable for the use or application by
the Company of any of the Debt Securities or of the proceeds of such Debt
Securities, or for the use or application of any moneys paid over by the Trustee
in accordance with any provision of this Indenture or established pursuant to
Section 2.1, or for the use or application of any moneys received by any paying
agent other than the Trustee.
SECTION 7.4. May Hold Debt Securities.
------------------------
The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Debt
Securities with the same rights it would have if it were not Trustee, paying
agent or Security Registrar.
SECTION 7.5. Moneys Held in Trust.
--------------------
Subject to the provisions of Section 11.5, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon. So long as no Event of Default shall
have occurred and be continuing, all interest allowed on any such moneys shall
be paid from time to time upon the written order of the Company, signed by the
President or a Vice President or the Treasurer or an Assistant Treasurer of the
Company.
SECTION 7.6. Compensation and Reimbursement.
------------------------------
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), as the Company and the Trustee may from time to time agree in
writing, for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, and, except as otherwise expressly provided herein,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of
29
its counsel and of all Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be secured by a lien prior to that of the Debt
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular Debt
Securities.
SECTION 7.7. Reliance on Officers' Certificate.
---------------------------------
Except as otherwise provided in Section 7.1, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture
upon the faith thereof.
SECTION 7.8. Qualification; Conflicting Interests.
------------------------------------
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 7.9. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee with respect to the Debt
Securities issued hereunder which shall at all times be a corporation organized
and doing business under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least fifty million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 7.10.
30
SECTION 7.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) The Trustee or any successor hereafter appointed, may at any time
resign with respect to the Debt Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of resignation
by mail, first class postage prepaid, to the Securityholders of such series, as
their names and addresses appear upon the Security Register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee
with respect to Debt Securities of such series by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to Debt
Securities of such series, or any Securityholder of that series who has been a
bona fide holder of a Debt Security or Debt Securities for at least six months
may, subject to the provisions of Section 6.8, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of subsection
(a) of Section 7.8 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.9 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or commence a voluntary bankruptcy proceeding, or
a receiver of the Trustee or of its property shall be appointed or
consented to, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, the Company may remove
the Trustee with respect to all Debt Securities and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 6.8, unless the Trustee's duty to resign is
stayed as provided herein, any Securityholder who has been a bona fide
holder of a Debt Security or Debt Securities for at least six months may,
on behalf of that holder and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the Debt
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the Company
and may appoint a successor Trustee for such series with the consent of the
Company.
31
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debt Securities of a series pursuant to
any of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debt Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect to the
Debt Securities of any particular series.
SECTION 7.11. Acceptance of Appointment By Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor trustee with
respect to all Debt Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Debt Securities of that or those series to which the appointment of such
successor trustee relates, (2) shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any act or failure to act on the part of any
other Trustee hereunder; and upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall
with respect to the Debt Securities of that or those series to which the
appointment of such successor trustee relates have no further responsibility for
the exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Debt Securities of that or those series to which the appointment of such
successor trustee relates; but, on request of the Company or any successor
trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect to
the Debt Securities of that or those series to which the appointment of such
successor trustee relates.
32
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Securityholders,
as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
-------- ----
qualified under the provisions of Section 7.8 and eligible under the provisions
of Section 7.9, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Debt Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debt Securities so authenticated with the same
effect as if such successor trustee had itself authenticated such Debt
Securities.
SECTION 7.13. Preferential Collection of Claims Against the Company.
-----------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.1. Evidence of Action by Securityholders.
-------------------------------------
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the Debt
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the taking
of any other action), the fact that at the time of taking any such action the
holders of such majority or specified percentage of that series have joined
therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by such holders of Debt Securities of that series in
Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced
33
by an Officers' Certificate, fix in advance a record date for such series for
the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Debt Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Outstanding Debt Securities of that series shall be computed as of
the record date; provided, however, that no such authorization, agreement or
-------- -------
consent by such Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after the record date.
SECTION 8.2. Proof of Execution by Securityholders.
-------------------------------------
Subject to the provisions of Section 7.1, proof of the execution of any
instrument by a Securityholder (such proof will not require notarization) or his
agent or proxy and proof of the holding by any Person of any of the Debt
Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Debt Securities shall be proved by the Security
Register of such Debt Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.3. Who May be Deemed Owners.
------------------------
Prior to the due presentment for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Debt Security shall be
registered upon the books of the Company as the absolute owner of such Debt
Security (whether or not such Debt Security shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and (subject to Section 2.3) interest on such
Debt Security and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be affected by any
notice to the contrary.
SECTION 8.4. Certain Debt Securities Owned by Company Disregarded.
----------------------------------------------------
In determining whether the holders of the requisite aggregate principal
amount of Debt Securities of a particular series have concurred in any
direction, consent waiver under this Indenture, the Debt Securities of that
series that are owned by the Company or any other obligor on the Debt Securities
of that series or by any Person directly or indirectly controlling or controlled
by or under common control with the Company or any other obligor on the Debt
Securities of that series (other than an Xxxxx Trust) shall be disregarded and
deemed not to be Outstanding for the purpose of any such determination, except
that for the
34
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Debt Securities of such series that the
Trustee actually knows are so owned shall be so disregarded. The Debt
Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Debt Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.5. Actions Binding on Future Securityholders.
-----------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.1, of the taking of any action by the holders of a
majority or specified percentage in aggregate principal amount of the Debt
Securities of a particular series in connection with such action, any holder of
a Debt Security of that series that is shown by the evidence to be included in
the Debt Securities the holders of which have consented to such action may, by
filing written notice with the Trustee, and upon proof of holding as provided in
Section 8.2, revoke such action so far as concerns such Debt Security. Except as
aforesaid, any such action taken by the holder of any Debt Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Debt Security, and of any Debt Security issued in exchange therefor, on
registration of transfer thereof or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Debt Security. Any action
taken by the holders of a majority or specified percentage in aggregate
principal amount of the Debt Securities of a particular series in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all the Debt Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without the Consent of Securityholders.
--------------------------------------------------------------
In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:
(a) to cure any ambiguity, defect or inconsistency herein or in the
Debt Securities of any series;
(b) to comply with Article X;
(c) to provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities;
(d) to add to the covenants of the Company for the benefit of the
holders of all or any series of Debt Securities (and if such covenants are to be
for the benefit of less than all series of Debt 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;
35
(e) to add to, delete from, or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities, as herein set forth;
(f) to make any change that does not adversely affect the rights of any
Securityholder in any material respect; or
(g) to provide for the issuance of and establish the form and terms and
conditions of the Debt Securities of any series as provided in Section 2.1, to
establish the form of any certifications required to be furnished pursuant to
the terms of this Indenture or any series of Debt Securities, or to add to the
rights of the holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed by the Company and the Trustee without the consent of the
holders of any of the Debt Securities at the time Outstanding notwithstanding
any of the provisions of Section 9.2.
SECTION 9.2. Supplemental Indentures With Consent of Securityholders.
-------------------------------------------------------
With the consent (evidenced as provided in Section 8.1) of the holders
of not less than a majority in aggregate principal amount of the Debt Securities
of each series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner not covered by
Section 9.1 the rights of the holders of the Debt Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
-------- -------
shall, without the consent of the holders of each Debt Security then Outstanding
and affected thereby, (i) extend the fixed maturity of any Debt Securities of
any series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Debt Security so
affected or (ii) reduce the aforesaid percentage of Debt Securities, the holders
of which are required to consent to any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders of any
series affected thereby under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 9.3. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.1, this Indenture shall, with
respect to such series, be and be deemed to be modified and
36
amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Debt Securities of the series affected thereby
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.4. Debt Securities Affected by Supplemental Indentures.
---------------------------------------------------
Debt Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.1, may bear a
notation in form approved by the Company, provided such form meets the
requirements of any securities exchange upon which such series may be listed, as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of that series so modified as to conform, in
the opinion of the Board of Directors of the Company, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered in exchange for the Debt
Securities of that series then Outstanding.
SECTION 9.5. Execution of Supplemental Indentures.
------------------------------------
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 Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to
the provisions of Section 7.1, may receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and that
it is proper for the Trustee under the provisions of this Article to join in the
execution thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 10.1. Company May Consolidate, Etc.
----------------------------
Nothing contained in this Indenture or in any of the Debt Securities
shall prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of the property of the Company or its successor or
successors as an entirety, or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company or its successor or
successors)
37
authorized to acquire and operate the same; provided, however, that (i) the
-------- -------
entity formed by such consolidation, or into which the Company shall have been
merged, or which shall have acquired such property (the "successor corporation")
shall be a corporation organized under a state of the United States or the
District of Columbia, (ii) upon such consolidation, merger, sale, conveyance,
transfer or other disposition, the successor corporation shall expressly assume,
by supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect), satisfactory in form to the Trustee and
executed and delivered to the Trustee, the due and punctual payment of the
principal of (premium, if any) and interest on all of the Debt Securities of all
series in accordance with the terms of each series, according to their tenor and
the due and punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.1 to be kept or performed by the
Company, and (iii) immediately following such consolidation, merger, sale,
conveyance, transfer or other disposition, no Event of Default and no event
which, after notice or lapse of time, or both, would become an Event of Default
shall have occurred and be continuing.
SECTION 10.2. Successor Corporation Substituted.
---------------------------------
(a) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition and upon the 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 of the
principal of, premium, if any, and interest on all of the Debt Securities of all
series Outstanding and the due and punctual performance of all of the covenants
and conditions of this Indenture or established with respect to each series of
the Debt Securities pursuant to Section 2.1 to be performed by the Company, with
respect to each series, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named as the
Company herein and thereupon the Company shall be relieved of all obligations
and covenants under this Indenture and the Debt Securities.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition, such changes in phraseology and form (but not in
substance) may be made in the Debt Securities thereafter to be issued as may be
appropriate.
(c) Nothing contained in this Indenture or in any of the Debt
Securities shall prevent the Company from merging any other Person (whether or
not affiliated with the Company) into itself or acquiring by purchase or
otherwise all or any part of the property of any other Person (whether or not
affiliated with the Company).
SECTION 10.3. Evidence of Consolidation, Etc. to Trustee.
------------------------------------------
The Trustee, subject to the provisions of Section 7.1, may receive an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or other disposition, and any such assumption, comply
with the provisions of this Article.
38
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.1. Satisfaction and Discharge of Indenture.
---------------------------------------
If at any time: (a) the Company shall have delivered to the Trustee for
cancellation all Debt Securities of a series theretofore authenticated (other
than any Debt Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.7 and Debt Securities
for whose payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company (and thereupon
repaid to the Company or discharged from such trust, as provided in Section
11.5)); or (b) all such Debt Securities of a particular series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit or cause
to be deposited with the Trustee as trust funds the entire amount in moneys or
Governmental Obligations or a combination thereof, 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 at maturity or
upon redemption all Debt Securities of that series not theretofore delivered to
the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to be
paid all other sums payable hereunder with respect to such series by the
Company; and if the Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm that,
the holders of the Debt Securities of such series will not recognize income,
gain or loss for United States federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to United States federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred, then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.3, 2.5, 2.7, 4.1,
4.2, 4.3 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.6 and 11.5, that shall survive to such
date and thereafter, and the Trustee, on demand of the Company and at the cost
and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to such series.
SECTION 11.2. Discharge of Obligations.
------------------------
If at any time all Debt Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become due
and payable as described in Section 11.1 shall have been paid by the Company by
depositing irrevocably with the Trustee as trust funds the entire amount in
moneys or Governmental Obligations, or a combination thereof, 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 at
maturity or upon redemption under arrangements satisfactory to the Trustee for
the giving of notice of redemption all such Debt Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company shall also pay
or cause to be paid all other sums payable hereunder by the Company with respect
to such series, then after the date such moneys or
39
Governmental Obligations, as the case may be, are deposited with the Trustee
then, and if the Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable United States federal income
tax law, in either case to the effect that, and such opinion shall confirm that,
the holders of the Debt Securities of such series will not recognize income,
gain or loss for United States federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to United States federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred, the obligations of the Company, under this Indenture with respect to
such series shall cease to be of further effect except for the provisions of
Sections 2.3, 2.5, 2.7, 4.1, 4.2, 4.3, and 7.10 hereof that shall survive until
such Debt Securities shall mature and be paid, and Sections 7.6 and 11.5 shall
survive to such date and thereafter.
SECTION 11.3. Deposited Moneys to be Held in Trust.
------------------------------------
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.1 or 11.2 shall be held in trust and shall be available
for payment as due, either directly or through any paying agent (including the
Company acting as its own paying agent), to the holders of the particular series
of Debt Securities for the payment or redemption of which such moneys or
Governmental Obligations have been deposited with the Trustee.
SECTION 11.4. Payment of Moneys Held by Paying Agents.
---------------------------------------
In connection with the satisfaction and discharge of this Indenture, or
the Company's obligation with respect to the Debt Securities of a series, all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.
SECTION 11.5. Repayment to Company.
--------------------
Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal
of or premium or interest on the Debt Securities of a particular series that are
not applied but remain unclaimed by the holders of such Debt Securities for at
least two years after the date upon which the principal of (and premium, if any)
or interest on such Debt Securities shall have respectively become due and
payable, shall be repaid to the Company on May 31 of each year or (if then held
by the Company) shall be discharged from such trust; and thereupon the paying
agent and the Trustee shall be released from all further liability with respect
to such moneys or Governmental Obligations, and the holder of any of the Debt
Securities entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof.
40
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.1. No Recourse.
-----------
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Debt Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer
or director, past, present or future as such, of the Company or of any
predecessor or successor corporation, either directly or through the Company or
any such predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or of
any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debt Securities or implied herefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer or director as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Debt Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Debt Securities.
ARTICLE XIII
SUBORDINATION OF DEBT SECURITIES
SECTION 13.1. Agreement to Subordinate.
------------------------
The Company covenants and agrees, and each holder of Debt Securities
issued hereunder, by such Securityholder's acceptance thereof, likewise
covenants and agrees, that all Debt Securities shall be issued subject to the
provisions of this Article XIII, and each Holder of a Debt Security, whether
upon original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
The payment by the Company of the principal of, premium, if any, and
interest on all Debt Securities issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article XIII shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 13.2. Default on Senior Indebtedness.
------------------------------
In the event that any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior Indebtedness
of the Company has occurred and is continuing and any applicable grace period
with respect to such default has expired and such default has not been cured or
41
waived or ceased to exist, or in the event that the maturity of any Senior
Indebtedness of the Company has been accelerated because of a default, then, in
either case, no payment shall be made by the Company with respect to the
principal (including redemption and sinking fund payments) of, or premium, if
any, or interest on the Debt Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 13.2, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 13.3. Liquidation; Dissolution; Bankruptcy.
------------------------------------
Upon 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 upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal (and premium, if any) or interest on the Debt
Securities; 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 Securityholders or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article XIII, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Securityholders or
by the Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (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 such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company remaining unpaid to the extent necessary to pay such Senior Indebtedness
in
42
full in money in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the benefit of the holders of such
Senior Indebtedness.
For purposes of this Article XIII, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article XIII with
respect to the Debt Securities to the payment of all Senior Indebtedness of the
Company that may at the time be outstanding, provided that (i) such Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. 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 for in Article X of this Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 13.3 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article X of this Indenture. Nothing in Section 13.2 or in this Section 13.3
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.6 of this Indenture.
SECTION 13.4. Subrogation.
-----------
Subject to the payment in full of all Senior Indebtedness of the
Company, the rights of the Securityholders shall be subrogated to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Company applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Debt Securities shall be paid in full; and, for the purposes of such
subrogation, no payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the Securityholders or
the Trustee would be entitled except for the provisions of this Article XIII,
and no payment over pursuant to the provisions of this Article XIII to or for
the benefit of the holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness of the Company, and the holders of the Debt Securities, be
deemed to be a payment by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article XIII are and
are intended solely for the purposes of defining the relative rights of the
holders of the Debt Securities, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
Nothing contained in this Article XIII or elsewhere in this Indenture
or in the Debt Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness of the
Company, and the holders of the Debt Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the holders of the Debt
Securities the principal of (and premium, if any) and interest on the Debt
Securities as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
holders of the Debt Securities and creditors of the Company, other than the
holders of Senior Indebtedness of the Company, nor shall anything herein or
therein prevent the Trustee or the holder of any Debt Security from exercising
all remedies otherwise permitted by applicable law upon default under the
Indenture, subject to the rights, if any, under this Article XIII of the holders
of such Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
43
Upon any payment or distribution of assets of the Company referred to
in this Article XIII, the Trustee, subject to the provisions of Section 7.1 of
this Indenture, and the Securityholders shall be entitled to conclusively 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 a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered to
the Trustee or to the Securityholders, for the purposes of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XIII.
SECTION 13.5. Trustee to Effectuate Subordination.
-----------------------------------
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article XIII and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 13.6. Notice by the Company.
---------------------
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Debt Securities
pursuant to the provisions of this Article XIII. Notwithstanding the provisions
of this Article XIII or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts that would prohibit
the making of any payment of monies to or by the Trustee in respect of the Debt
Securities pursuant to the provisions of this Article XIII, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness of the Company or
from any trustee therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.1 of this Indenture, shall
be entitled in all respects to assume that no such facts exist; provided,
--------
however, that if the Trustee shall not have received the notice provided for in
-------
this Section 13.6 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Debt Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.1 of the Indenture,
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness of the
Company (or a trustee on behalf of such holder), to establish that such notice
has been given by a holder of such Senior Indebtedness or a trustee on behalf of
any such holder or holders. 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 such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article XIII, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of such 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 XIII, and, if
such evidence is not furnished, the
44
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.7. Rights of the Trustee; Holders of Senior Indebtedness.
-----------------------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XIII 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 this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XIII, and no implied
covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture or against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Section 7.1 of this Indenture,
the Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to Securityholders, the Company or any other Person
money or assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article XIII or otherwise.
SECTION 13.8. Subordination May Not Be Impaired.
---------------------------------
No right of any present or future holder of any Senior Indebtedness of
the Company to enforce subordination as herein provided shall be at any time in
any way prejudiced or impaired by any act or failure to act on the part of the
Company or by any 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 of
this Indenture, regardless of any knowledge thereof that any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Company may, at any time and from time
to time, without the consent of or notice to the Trustee or the Securityholders,
without incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XIII or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1. Effect on Successors and Assigns.
--------------------------------
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind successors and
assigns of the Company, whether so expressed or not.
SECTION 14.2. Actions by Successor.
--------------------
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful successor of the Company.
SECTION 14.3. Surrender of Company Powers.
---------------------------
The Company by instrument in writing executed by authority of 2/3 (two-
thirds) of the Board of Directors and delivered to the Trustee may surrender any
of the powers reserved to the Company, and thereupon such power so surrendered
shall terminate both as to the Company and as to any successor corporation.
SECTION 14.4. Notices.
-------
Except as otherwise expressly provided herein, any notice or demand
that by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Debt Securities to or on the Company
may be given or served by being deposited first class postage prepaid in a post-
office letterbox addressed (until another address is filed in writing by the
Company with the Trustee), as follows: Xxxxx Industries, Inc., Xxx Xxxxxxx
Xxxxx, Xxx 0000, Xxxxxxxx, Xxxxxxx 00000, Attention: Treasurer. Any notice,
election, request or demand by the Company or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the Corporate Trust Office of the
Trustee.
SECTION 14.5. Governing Law.
-------------
This Indenture and each Debt Security shall be deemed to be a contract
made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 14.6. Treatment of the Debt Securities as Debt.
----------------------------------------
It is intended that the Debt Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this intention.
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SECTION 14.7. Compliance Certificates and Opinions.
------------------------------------
(a) Upon any application or demand by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 14.8. Payments on Business Days.
-------------------------
Except as provided pursuant to Section 2.1 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in one
or more indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Debt Security or the date of redemption
of any Debt Security shall not be a Business Day, then payment of interest or
principal (and premium, if any) may be made on the next succeeding Business Day
with the same force and effect as if made on the nominal date of maturity or
redemption, and no interest shall accrue for the period after such nominal date;
except that, if such Business Day is in the next succeeding calendar year, then
such payment shall be made on the immediately preceding Business Day, as if made
on the nominal date of maturity or redemption.
SECTION 14.9. Conflict with Trust Indenture Act.
---------------------------------
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 14.10. Counterparts.
------------
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 14.11. Separability.
------------
In case any one or more of the provisions contained in this Indenture
or in the Debt Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Debt Securities, but this Indenture and such Debt Securities shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
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SECTION 14.12. Assignment.
----------
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly-owned Subsidiary of the Company, provided that, in the event of any such
-------- ----
assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, the Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
XXXXX INDUSTRIES, INC.
By:_________________________________________
Name:
Title:
Attest:
By:_________________________
Name:
Title:
[Seal]
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Trustee
By:_________________________________________
Name:
Title:
Attest:
By:_________________________
Name:
Title:
[Seal]
49
STATE OF INDIANA )
) SS:
COUNTY OF __________ )
On the ____ day of ___________, 199__, before me personally came
__________ and __________ to me known, who, being by me duly sworn, did depose
and say that they are the __________ and __________, respectively, of XXXXX
INDUSTRIES, INC., one of the corporations described in and which executed the
above instrument; that they know the corporate seal of said corporation; that
the seal affixed to the said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
they signed their respective names thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of
office this ____ day of _____________, 199__.
________________________________________
Notary Public
STATE OF DELAWARE )
)
COUNTY OF _______ )
On the ____ day of ____________, 199__, before me personally came
__________ and __________ to me known, who, being by me duly sworn, did depose
and say that they are __________ and __________, respectively, of
__________________________________, one of the corporations described in and
which executed the above instrument; that they know the corporate seal of said
corporation; that the seal affixed to the said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that they signed their respective names thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of
office this ____ day of ___________, 199__.
_______________________________________
Notary Public
50
