EXHIBIT 4(A)
TRUST INDENTURE
---------------
Dated as of _________, 1998
between
FDX CORPORATION, as Issuer,
FEDERAL EXPRESS CORPORATION, as Guarantor
and
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
DEBT SECURITIES
RECONCILIATION AND TIE BETWEEN
TRUST INDENTURE ACT OF 1939
(THE "TRUST INDENTURE ACT") AND INDENTURE
Trust Indenture Act Section Indenture Section
section 310 (a)(1).......................................... 6.09
(a)(2).......................................... 6.09
(b)............................................. 6.10
section 311 (b)(4).......................................... 6.13
(b)(6).......................................... 6.13
section 312 (a)............................................. 7.01
(b)............................................. 7.02
(c)............................................. 7.02
section 313 (a)............................................. 7.03
(b)(2).......................................... 7.03
(c)............................................. 7.03
(d)............................................. 7.03
section 314 (a)............................................. 7.04
(c)(1).......................................... 1.02
(c)(2).......................................... 1.02
(e)............................................. 1.02
(f)............................................. 1.02
section 316 (a) (last sentence)............................. 1.01
(a)(1)(A)....................................... 5.02 and 5.12
(a)(1)(B)....................................... 5.13
(b)............................................. 5.08
section 317 (a)(1).......................................... 5.03
(a)(2).......................................... 5.04
(b)............................................. 10.03
section 318 (a)............................................. 1.07
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This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
NOTE: Section 318(c) of the Trust Indenture Act provides that the provisions of
Sections 310-317 are a part of and govern every qualified indenture,
whether or not physically contained therein.
TABLE OF CONTENTS*
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PAGE
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Compliance Certificates and Opinions..........................9
SECTION 1.03. Form of Documents Delivered to Trustee.......................10
SECTION 1.04. Acts of Holders..............................................10
SECTION 1.05. Notices, Etc. to Trustee and Company.........................11
SECTION 1.06. Notice to Holders; Waiver....................................12
SECTION 1.07. Conflict with Trust Indenture Act............................12
SECTION 1.08. Effect of Headings and Table of Contents.....................12
SECTION 1.09. Successors and Assigns.......................................12
SECTION 1.10. Separability Clause..........................................13
SECTION 1.11. Benefits of Indenture........................................13
SECTION 1.12. Governing Law................................................13
SECTION 1.13. Legal Holidays...............................................13
SECTION 1.14. Language of Notices..........................................13
SECTION 1.15. Counterparts.................................................13
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally..............................................13
SECTION 2.02. Form of Trustee's Certificate of Authentication..............14
SECTION 2.03. Global Securities............................................14
ARTICLE 3
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.........................16
SECTION 3.02. Denominations................................................19
SECTION 3.03. Execution, Authentication, Delivery and Dating...............19
SECTION 3.04. Temporary Securities.........................................21
SECTION 3.05. Registration, Transfer and Exchange..........................22
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.............25
SECTION 3.07. Payment of Interest; Interest Rights Preserved...............25
SECTION 3.08. Persons Deemed Owners........................................27
SECTION 3.09. Cancellation.................................................27
SECTION 3.10. Computation of Interest......................................28
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*This table of contents shall not, for any purpose, be deemed to be a part of
the Indenture.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture......................28
SECTION 4.02. Application of Trust Money...................................29
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default............................................30
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment...........31
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................32
SECTION 5.04. Trustee May File Proofs of Claim.............................33
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities...................................................34
SECTION 5.06. Application of Money Collected...............................34
SECTION 5.07. Limitation on Suits..........................................35
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................35
SECTION 5.09. Restoration of Rights and Remedies...........................36
SECTION 5.10. Rights and Remedies Cumulative...............................36
SECTION 5.11. Delay or Omission Not Waiver.................................36
SECTION 5.12. Control by Holders...........................................36
SECTION 5.13. Waiver of Past Defaults......................................37
SECTION 5.14. Undertaking for Costs........................................37
SECTION 5.15. Waiver of Stay or Extension Laws.............................37
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities..........................38
SECTION 6.02. Notice of Defaults...........................................39
SECTION 6.03. Certain Rights of Trustee................................... 39
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities...... 40
SECTION 6.05. May Hold Securities......................................... 41
SECTION 6.06. Money Held in Trust......................................... 41
SECTION 6.07. Compensation and Reimbursement.............................. 41
SECTION 6.08. Intentionally Left Blank.................................... 42
SECTION 6.09. Corporate Trustee Required; Eligibility..................... 42
SECTION 6.10. Resignation and Removal; Appointment of Successor........... 42
SECTION 6.11. Acceptance of Appointment by Successor...................... 44
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business.................................................... 46
SECTION 6.13. Preferential Claims......................................... 46
SECTION 6.14. Appointment of Authenticating Agent......................... 46
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders..................................................... 48
SECTION 7.02. Preservation of Information; Communications to Holders...... 49
SECTION 7.03. Reports by Trustee.......................................... 50
SECTION 7.04. Reports by Company.......................................... 50
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc. on Certain Terms.............. 51
SECTION 8.02. Successor Corporation Substituted........................... 52
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.......... 52
SECTION 9.02. Supplemental Indentures with Consent of Holders............. 54
SECTION 9.03. Execution of Supplemental Indentures........................ 55
SECTION 9.04. Effect of Supplemental Indentures........................... 55
SECTION 9.05. Conformity with Trust Indenture Act......................... 55
SECTION 9.06. Reference in Securities to Supplemental Indentures.......... 55
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Any Premium, Interest and
Additional Amounts.......................................... 56
SECTION 10.02. Maintenance of Office or Agency............................. 56
SECTION 10.03. Money for Securities Payments to Be Held in Trust........... 56
SECTION 10.04. Corporate Existence......................................... 58
SECTION 10.05. Statement as to Default..................................... 58
SECTION 10.06. Additional Amount........................................... 58
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.................................... 59
SECTION 11.02. Election to Redeem; Notice to Trustee....................... 59
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed........... 60
SECTION 11.04. Notice of Redemption........................................ 60
SECTION 11.05. Deposit of Redemption Price................................. 61
SECTION 11.06. Securities Payable on Redemption Date....................... 61
SECTION 11.07. Securities Redeemed in Part................................. 62
ARTICLE 12
GUARANTEE OF NOTES
SECTION 12.01. Unconditional Guarantee..................................... 62
SECTION 12.02. Execution and Delivery of Security Guarantee................ 64
SECTION 12.03. Additional Guarantors....................................... 64
SECTION 12.04. Release of a Guarantor...................................... 64
SECTION 12.05. Waiver of Subrogation....................................... 65
SECTION 12.06. Reliance on Judicial Order or Certificate of Liquidating
Agent Regarding Dissolution, etc. of Guarantors ............ 65
SECTION 12.07. Limitation of Subsidiary Guarantor's Liability ............. 66
SECTION 12.08. Contribution from Other Guarantors.......................... 66
SECTION 12.09. Obligations Reinstated...................................... 66
SECTION 12.10. No Obligation to Take Action Against the Company............ 67
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance........................... 68
SECTION 13.02. Defeasance and Discharge.................................... 68
SECTION 13.03. Covenant Defeasance......................................... 69
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance............. 69
SECTION 13.05. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions............... 71
ARTICLE 14
SINKING FUNDS
SECTION 14.01. Applicability of Article.................................... 72
SECTION 14.02. Satisfaction of Sinking Fund Payments with Securities....... 73
SECTION 14.03. Redemption of Securities for Sinking Fund................... 73
ARTICLE 15
SECURITIES IN FOREIGN CURRENCIES
SECTION 15.01. Applicability of Article.................................... 73
SCHEDULE I Supplemental Indenture
EXHIBIT A Form of Debt Security
EXHIBIT B Form of Guarantee
TRUST INDENTURE
INDENTURE, dated as of ____________, 1998, between FDX Corporation, a
Delaware Corporation (the "Company"), Federal Express Corporation, a Delaware
Corporation (the Guarantor") and The First National Bank of Chicago, a
national banking association organized under the laws of the United States of
America, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its senior
unsecured debentures, bonds, notes or other evidences of indebtedness,
unlimited as to principal amount, to bear such rates of interest, to mature at
such time or times, to be issued in one or more series and to have such other
provisions as shall be fixed as hereinafter provided;
WHEREAS, the Company, at its sole option, may direct the Guarantor to
issue from time to time guarantees of the Securities and the Company's
obligations under this Indenture (the "Guarantee");
WHEREAS, the Guarantor has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of the
Guarantees, if any;
WHEREAS, the Company and the Guarantor have duly authorized the
execution and delivery of this Indenture and all things necessary to make this
Indenture a valid agreement of the Company and the Guarantor, in accordance
with its terms, have been done; and
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities (as defined herein) by the Holders (as herein defined) thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities or of any series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(ii) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America as of the date of such
computation; and
(iv) the words "herein," "hereof," "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision.
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.04.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing
to such Holders.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities of one or more series.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of the board of directors of the Company.
"Board Resolution" means a copy of one or more resolutions certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, delivered to the Trustee.
"Business Day" means any day other than Saturday, Sunday or other day
on which banking institutions in New York, Illinois or Tennessee are
authorized or obligated by law to close.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means FDX Corporation or any successor Corporation which
shall have become such under this Indenture.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its President or any Vice President and
delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which
issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Union or (iii) any currency unit or composite currency other than the
ECU for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be principally administered, which office at the date of original
execution of this Indenture is located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000-0000.
"Corporation" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and
business trusts.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency,
as the case may be, in which such payment, deposit or other transfer is
required to be made by or pursuant to the terms hereof or such Security and,
with respect to any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof or such Security, means Dollars.
"CUSIP Number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depository" means, with respect to the Securities of any series
issuable upon original issuance in whole or in part in the form of one or more
Global Securities, the clearing agency registered under the Securities
Exchange Act of 1934, as amended, specified for that purpose as contemplated
by Section 3.01.
"Dollars" means a dollar or other equivalent unit of legal tender for
payment of debts in the United States of America.
"ECU" means the European Currency Units as defined and revised from
time to time by the Counsel of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Community.
"European Union" means the European Community, the European Coal
and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.01.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States or by any recognized
confederation or association of such governments.
"Global Security" means a Security bearing the legend specified in
Section 2.03 evidencing all or part of a series of Securities, issued to the
Depository with respect to such series or its nominee and registered in the
name of such Depository or nominee.
"Government Obligations" means securities which are (x) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which
the principal of or any premium or interest on any Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments, or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America or such other governments or governments, in each case where the
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other
governments or governments, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank as custodian with respect to any such
Government Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the
custodian in respect to the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Guarantee" has the meaning stated in the second recital of this
Indenture and more particularly means any Guarantee authenticated and
delivered under this Indenture.
"Guarantor" means Federal Express Corporation, a Delaware corporation
and Subsidiary of the Company.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any person means indebtedness for borrowed money
and indebtedness under purchases money Liens or other purchase money liens or
conditional sales or similar title retention agreements, in each case where
such indebtedness has been created, incurred, or assumed by such person to the
extent such indebtedness would appear as a liability upon a balance sheet of
such Person prepared in accordance with GAAP, guarantees by such Person of
such indebtedness, and indebtedness for borrowed money secured by any Lien,
pledge or other lien or encumbrance upon property owned by such Person,
even though such Person has not assumed or become liable for the payment of
such indebtedness.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
of each particular series of Securities established as contemplated by Section
3.01.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest," with respect to any Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity and, when used with respect to a Security which provides for
the payment of Additional Amounts pursuant to Section 10.06, includes such
Additional Amounts.
"Interest Payment Date," with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Lien" means any Lien, security interest, pledge, lien or other
encumbrance.
"Maturity," with respect to any Security, means the date on which the
principal of such Security, or an installment of principal, becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or repurchase or otherwise
and includes the Redemption Date.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the President or any Vice President, and attested by the Secretary
or any Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or of counsel to the Company, or other counsel reasonably
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security issued pursuant
to this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration of the
Maturity pursuant to Section 5.02.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment at the Maturity thereof money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities for whose payment or redemption money or Government
Obligations as contemplated by Section 13.04 in the necessary amount
have been theretofore deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.09) in trust for the Holders
of such Securities in accordance with Section 13.05; and
(iv) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be equal to the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section
5.02, (ii) the principal amount of any Indexed Security that may be counted in
making such determination and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security
at original issuance, unless otherwise provided in this Indenture, (iii) the
principal amount of a Security denominated in a Foreign Currency shall be the
Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security, and (iv) Securities owned by the Company or any other obligor or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, Corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment," with respect to the Securities of any series,
means the place where the principal of (and premium, if any), interest on, and
Additional Amounts with respect to, the Securities of that series are payable
as provided in or pursuant to this Indenture or such Securities.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date," with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof
to be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or such Security.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified in or
pursuant to this Indenture or such Security as the "Regular Record Date."
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
knowledge of and familiarity with the particular subject.
"Securities" means any debentures, bonds, notes or other evidences of
indebtedness, as the case may be, of any series authenticated and delivered
from time to time under this Indenture, provided, however, that if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to any such Person shall mean securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest on
any Security means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts, means the
date established by or pursuant to this Indenture or such Security as the
fixed date on which the principal of such Security or such installment of
principal or interest is, or such Additional Amounts are, due and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls,
directly or indirectly, more than 50% of the shares of voting stock. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
If at any time there is more than one such Person, "Trustee" shall mean such
Person and as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.05.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 1.02. Compliance Certificates and Opinions. Except as
otherwise expressly provided in this Indenture, upon any application or
request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officer's
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with or an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that, in the
case of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished. Any Officer's Certificate will
comply with Section 314(e) of the Trust Indenture Act.
SECTION 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless
such officer knows, or in the exercise of reasonable care should know, that
the opinion with respect to the matters upon which the certificate or opinion
is based are erroneous. Any such Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.01) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities of
any series any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, fix in advance a record
date for the determination of Holders of Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent and waiver or
other Act may be sought or given before or after the record date, but only the
Holders of Securities of record at the close of business on such record date
shall be deemed to be Holders of Securities for the purpose of determining
whether Holders of the requisite proportion of Securities of such series
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Securities of such series Outstanding shall be computed as of such
record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 1.05. Notices, Etc. to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with:
(i) the Trustee by any Holder or the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office; or
(ii) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000, attention Vice President and Treasurer, or at any
other address previously furnished in writing to the Trustee by
the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture or any
Security provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at the Holder's address as it appears in the
Security Register, not later than the latest date, or not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given or provided.
Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
SECTION 1.08. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State
of Tennessee.
SECTION 1.13. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) or any Additional Amounts need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and no interest shall accrue with respect to such payments for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day.
SECTION 1.14. Language of Notices. Any request, demand,
authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that,
if the Company so elects, any published notice may be in an official language
of the country of publication.
SECTION 1.15. Counterparts. This Indenture may be executed in
several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities of each series shall be
in substantially the form attached hereto as Exhibit A as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be consistently
herewith, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
If any form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at the same time as or prior to the
delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The definitive Securities may be produced in any manner determined by
the officers executing such Securities, as evidenced by their execution of
such Securities.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without
coupons and shall not be issuable upon the exercise of warrants.
SECTION 2.02. Form of Trustee's Certificate of Authentication. This
is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By:________________________________
Authorized Officer
SECTION 2.03. Global Securities. Unless otherwise provided in or
pursuant to this Indenture or any Securities, the Securities shall be issued
in global form. Any such Security may provide that it or any number of such
Securities shall represent the aggregate amount of all Outstanding Securities
of such series (or such lessor amount as is permitted by the terms thereof)
from time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from time to time
be increased or reduced to reflect exchanges. Any endorsement of any
Security in global form to reflect the amount, or any increase or decrease
in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby shall be made in such manner and by such
Person as shall be specified therein or in the Company Order to be
delivered pursuant to Section 3.03 or 3.04 with respect thereto.
Subject to the provisions of Section 3.03 and, if applicable, Section
3.04, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person specified therein
or in the applicable Company Order. If a Company Order pursuant to Section
3.03 or 3.04 has been, or simultaneously is, delivered, any instructions by
the Company with respect to a Security in global form shall be in writing but
need not be accompanied by or contained in an Officer's Certificate and need
not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.07, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in global form shall be made to the Person specified
therein.
Notwithstanding the provisions of Section 3.08 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder, the holder of such global
Security in registered form.
Any Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
"This Security is a Global Security within the meaning of
the Indenture hereinafter referred to and is registered in the name
of a Depository or a nominee of a Depository. This Security is
exchangeable for Securities registered in the name of a Person other
than the Depository or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Security (other
than a transfer of this Security as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository) may be registered
except in such limited circumstances."
ARTICLE 3
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and (subject to Section 3.03)
set forth in an Officer's Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series (subject to the last paragraph of this Section 3.01):
(i) the title of the Securities and the series in which such
Securities shall be included (which shall distinguish the Securities
of the series from all other Securities);
(ii) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities
which, pursuant to Section 3.03 are deemed never to have been
authenticated and delivered hereunder);
(iii) the date or dates on which the principal of the Securities
of the series is payable;
(iv) the Person to whom any interest on any Security of the series
shall be payable if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the rate or
rates, which may be fixed or variable, at which the Securities of the
series shall bear interest, if any, if the rate is variable, the
manner of calculation thereof, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the
interest payable on any Interest Payment Date;
(v) the place or places where the principal of (and premium, if
any) and interest, if any, on Securities of the series shall be
payable;
(vi) the date or dates on which, the period or periods within
which, the price or prices at which and the terms and conditions upon
which Securities of the series may be redeemed, in whole or in part,
at the option of the Company;
(vii) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the date or dates
on which, the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation and any provisions for the remarketing of such
securities so redeemed or purchased;
(viii) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(ix) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02 or the method by which such portion is to
be determined;
(x) the application, if any, of either or both of Section 13.02
and Section 13.03 to the Securities of the series;
(xi) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(xii) if the principal of (and premium, if any) or interest, if
any, on the Securities of that series are to be payable, at the
election of the Company or a holder thereof, in a currency
(including a composite currency) other than that in which the
Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the terms and conditions
upon which, such election may be made;
(xiii) if the amount of payments of principal of (and premium if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method or
methods based on a currency (including a composite currency) other
than that in which the Securities are stated to be payable, the terms
and conditions upon which and the manner in which such amounts shall
be determined and paid or payable;
(xiv) if the amount of payments of principal of, any premium or
interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(xv) whether any Securities of the series are to be issuable upon
original issuance in the form of one or more Global Securities and,
if so, (i) the Depository with respect to such Global Security or
Securities and (ii) the circumstances under which any such Global
Security may be exchanged for Securities registered in the name of,
and any transfer of such Global Security may be registered to, a
Person other than such Depository or its nominee, if other than as
set forth in Section 3.05;
(xvi) whether and under what circumstances Additional Amounts on
such Securities or any of them shall be payable;
(xvii) the notice, if any, to Holders regarding the determination
of interest on a floating rate Security and the manner of giving such
notice, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(xviii) intentionally left blank;
(xix) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(xx) if any of such Securities are to be issuable in global form
and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt
of certain certificates or other documents or satisfaction of
other conditions, then the form and terms of such certificates,
documents or conditions;
(xxi) if there is more than one Trustee, the identify of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to
such Securities;
(xxii) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) and any deletions
from or modifications or additions to this Indenture in respect of
such series; and
(xxiii) the terms of any Guaranty, if any.
All Securities of any one series shall be substantially identical
except as to denomination, currency, rate of interest, or method of
determining the rate of interest, if any, Maturity, and the date from which
interest, if any, shall accrue and except as may otherwise be provided in or
pursuant to such Board Resolution referred to above and (subject to Section
3.03) set forth in the Officer's Certificate referred to above or in any
indenture supplemental hereto. If any of the terms of the series are
established by action taken pursuant to a Board Resolution, a copy of the
Board Resolution shall be delivered to the Trustee at the same time as or
prior to the delivery of the Officer's Certificate setting forth the terms of
the series.
Notwithstanding any contrary terms of this Section 3.01, the terms of
the Securities of any series may provide, without limitation, that the
Securities shall be authenticated and delivered by the Trustee on original
issue from time to time upon telephonic or written order of Persons designated
in the Officer's Certificate or supplemental indenture and that such Persons
are authorized to determine, consistent with such Officer's Certificate or any
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such certificate or supplemental indenture. All
Securities of any one series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
SECTION 3.02. Denominations. Unless otherwise provided in or pursuant
to this Indenture, the principal of, any premium and interest on and any
Additional Amounts with respect to the Securities shall be payable in Dollars.
The Securities of each series shall be issuable only in fully registered form
without coupons in such denominations as shall be specified pursuant to
Section 3.01. In the absence of any such provision with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its President or any
Vice President, under its corporate seal reproduced thereon attested by its
Secretary or any Assistant Secretary. The signature of any of these officers
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were the proper officers of the Company when their signatures were affixed
to such Securities shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices
at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions or indentures
supplemental hereto as permitted by Sections 2.01and 3.01, in authenticating
such Securities and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying
upon:
(a) an Opinion of Counsel to the effect that:
(i) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such
form has been established in conformity with the provisions of this
Indenture;
(ii) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.01, that such
terms have been established in conformity with the provisions of this
Indenture;
(iii) this Indenture has been qualified under the Trust Indenture
Act; and
(iv) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting the enforcement of creditors' rights and to
general equity principles and will entitle the Holders thereof to the
benefits of this Indenture; and
(b) an Officer's Certificate stating that, to the best knowledge of
the Person executing such certificate, no event which is, or after notice or
lapse of time would become, an Event of Default with respect to any of the
Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver an Opinion of Counsel,
Officer's Certificate or the Company Order otherwise required at or prior
to the time of authentication of each Security of such series if such
documents are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by, or on behalf of, the Trustee or by the Authenticating Agent by
manual signature. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 together with a written statement
(which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not
be entitled to the benefits of this Indenture.
The Trustee shall not be required to authenticate or to cause an
Authentication Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
SECTION 3.04. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and deliver to
the Trustee, and, upon Company Order, the Trustee shall authenticate and
deliver in the manner provided in Section 3.03, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers of
the Company executing such Securities may determine, as evidenced by their
execution of such Securities. Such temporary Securities may be in global
form.
If temporary Securities of any series are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities at the
office or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series and of like
tenor of authorized denomination containing terms and provisions that are
identical to those of any temporary Securities. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same
series.
SECTION 3.05. Registration, Transfer and Exchange. The Company shall
cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities
and of transfers of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
The Company shall have the right to remove and replace from time to
time the Security Registrar for any series of Securities; provided that no
such removal or replacement shall be effective until a successor Security
Registrar with respect to such series of Securities shall have been appointed
by the Company and shall have accepted such appointment by the Company. In the
event that the Trustee shall not be or shall cease to be Security Registrar
with respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for such
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor containing identical terms and
provisions.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series containing identical terms
and provisions in any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or the Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.
Except as otherwise provided herein, the Company shall not be
required (i) to issue, register the transfer of or exchange Securities of any
series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of such series
selected for redemption under Section 11.03 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any Global Security of any series shall be
exchangeable for definitive Securities only if: (a) such Depository is
unwilling, unable or ineligible to continue as Depository with respect to such
Global Security and a successor depository is not appointed by the Company
within 90 days or if at any time the Depository with respect to such Global
Security ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or (b) the Company executes and delivers to
the Trustee a Company Order providing that such Global Security shall be so
exchangeable and the transfer thereof so registrable.
If the beneficial owners of interests in a Global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in the preceding sentence, then without unnecessary delay
but in any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to
this Indenture, and of the same series, containing identical terms and in
aggregate principal amount equal to the principal amount of such Global
Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such Global Security shall be
surrendered from time to time by the Depository and in accordance with
instructions given to the Trustee and the Depository (which instructions
shall be in writing but need not be contained in or accompanied by an
Officers Certificate or be accompanied by an Opinion of Counsel), as shall
be specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, to be exchanged, in whole or in part,
for definitive Securities as described above without charge.
The Trustee shall authenticate and make available for delivery, in
exchange for each portion of such surrendered Global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such Global
Security to be exchanged, which shall be in the form of Securities, as shall
be specified by the beneficial owner thereof, provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of the same series to be redeemed and
ending on the relevant Redemption Date.
Promptly following any such exchange in part, such global Security
shall be returned by the Trustee to such Depository in accordance with the
instructions of the Company referred to above. If a Security is issued in
exchange for any portion of a Global Security after the close of business at
the office or agency for such Security where such exchange occurs on or after
(i) any Regular Record Date for such Security and before the opening of
business at such office or agency on the next Interest Payment Date, or (ii)
any Special Record Date for such Security and before the opening of business
at such office or agency on the related proposed date for payment of interest
or Defaulted Interest, as the case may be, interest shall not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of such Security, but shall be payable on such Interest Payment
Date or proposed date for payment, as the case may be, only to the Person to
whom interest in respect of such portion of such Global Security shall be
payable in accordance with the provisions of this Indenture.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If
(i) any mutilated Security is surrendered to the Trustee or if there shall be
delivered to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of any Security and (ii) there shall be delivered
to the Company and the Trustee such indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
mutilated, destroyed, lost or stolen Security, a new Security of the same
series containing identical terms and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute a separate
obligation of the Company, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and
all other Securities of the same series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant
to this Indenture, are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 3.01 with respect to any series
of Securities, interest on and any Additional Amounts with respect to any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Any interest on, and any Additional Amounts with respect to, any
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest
to the Person in whose name the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money 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
will be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such
series at the Holder's 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 so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Securities may be paid by
mailing a check to the address of the Person entitled thereto as such address
shall appear in the Security Register or by transfer to an account maintained
by the payee with a bank located in the United States.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 3.05
and 3.07) interest on and any Additional Amounts with respect to such Security
and for all other purposes whatsoever, whether or not any payment with respect
to such Security shall be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
No Holder of any beneficial interest in any Global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such Global Security, and such Depository may be treated by the
Company, the Trustee, and any agent of the Company or the Trustee as the owner
of such Global Security for all purposes whatsoever. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 3.09. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer, exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever and may deliver to the Trustee (or to an
Authenticating Agent for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order.
SECTION 3.10. Computation of Interest. Except as otherwise specified
pursuant to Section 3.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to rights of
registration of transfer or exchange of Securities), and the Trustee on
receipt of the Company Request, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
as to such series, when:
(a) either
(i) all Securities of such series theretofore authenticated and
delivered (other than (A) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.06 and (B) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) if redeemable at the option of the Company are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (A), (B) or (C) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest and any Additional Amounts to the date of such deposit (in
the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be.
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's
Certificate or an Opinion of Counsel, stating that all conditions precedent
herein relating to the satisfaction and discharge of this Indenture with
respect to such Securities have been complied with.
In the event there are Securities of two or more series hereunder,
the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of such series as to which it is Trustee and if the
other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of any series, the obligations of the Company to the
Trustee under Section 6.07, the obligations of the Trustee to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations under Sections 3.04, 3.05, 3.06, 10.02 and 11.03, and
the obligation to pay Additional Amounts, if any, with respect to such
Securities as contemplated by Section 10.06 (but only to the extent that any
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section
4.01(a)(ii), shall survive.
SECTION 4.02. Application of Trust Money. Subject to the provisions
of the penultimate paragraph of Section 10.03, all money and Government
Obligations deposited with the Trustee pursuant to Section 4.01 and Article 13
shall be held in trust and applied by it, in accordance with the provisions of
the Securities of the series for which such deposit was made and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), interest and Additional Amounts for whose payment such money and
Government Obligations has been deposited with the Trustee; but such money and
Government Obligations need not be segregated from other funds except to the
extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default. "Event of Default," wherever used
herein with respect to the Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officer's Certificate establishing the terms of such
series pursuant to this Indenture:
(a) default in the payment of any interest upon any Security of
such series when it becomes due and payable, and continuance of
such default for a period of 30 days;
(b) default in the payment of the principal of (or premium, if
any, on) any Security of such series at its Maturity;
(c) default in the performance, or breach, of any covenant,
agreement or warranty of the Company or the Guarantor in this
Indenture (other than a covenant, agreement or warranty a default in
whose performance is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely
for the benefit of series of Securities other than such series) and
continuance of such default for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
50% in principal amount of the Outstanding Securities of such series
a written notice specifying such default and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder;
(d) default in the deposit of any sinking fund payment when and
as due by the terms of a Security of such series;
(e) the entry by a court having jurisdiction of a decree or
order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under
federal bankruptcy law or any other applicable federal or state law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive
days;
(f) the commencement by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
commencement of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under federal bankruptcy law or any other
applicable federal or state law, or the consent by it to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the
making by it of a general assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action; or
(g) any other Event of Default provided pursuant to Section 3.01
with respect to Securities of such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the Holders of not less than 50% in principal amount of the Outstanding
Securities of such series may declare the principal amount of all the
Securities of such series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before the Stated Maturity thereof,
the Holders of a majority in principal amount of the Outstanding Securities of
such series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on and any
Additional Amounts with respect to all Securities of such
series;
(B) the principal of (and premium, if any on) any
Securities of such series which have become due otherwise
than by such declaration of acceleration and interest
thereon at the rate borne by the Securities of such series
and any Additional Amounts;
(C) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue interest
or Additional Amounts at the rate borne by the Securities of
such series; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(ii) all Events of Default with respect to the Securities of such
series, other than the non-payment of the principal of Securities of
such series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if:
(i) default is made in the payment of any interest on any
Securities when such interest becomes due and payable and such
default continues for a period of 30 days, or
(ii) default is made in the payment of the principal of (or
premium, if any, on) any Securities at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate borne by the Securities and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sum so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of the Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal (and premium, if any) or interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest and Additional Amounts owing
and unpaid in respect of the Securities and to file such other
papers and documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any), interest or
Additional Amounts, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.07;
Second: To the payment of the amounts then due and unpaid
for principal of (and premium, if any), interest and Additional Amounts on the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal (and premium, if
any), interest and Additional Amounts, respectively; and
Third: To the payment of the remainder, if any, to the Company or
any other Person lawfully entitled thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(ii) the Holders of not less than 50% in principal amount of the
Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceedings; and
(v) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series.
It being understood and intended that no one or more Holders of Securities
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the right of
any other such Holders of Securities of such series, or to obtain or to seek
to obtain priority or preference over any other such Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders of Securities.
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any,
on) and (subject to Section 3.07) interest on, and any Additional Amounts with
respect to, such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceedings has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right
or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series,
provided that:
(i) such direction shall not be in conflict with any rule of
law or with this Indenture or with such Securities;
(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(iii) subject to Section 6.01, the Trustee need not take any action
which might be prejudicial to the Holders of such series not
consenting.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default:
(i) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(ii) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect
to such series, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 5.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 5.15. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise 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 person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(c) 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:
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series 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 Securities of such series;
and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02. Notice of Defaults. Within 90 days after the occurrence
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any) or interest on any
Security, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee
of directors or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders of
Securities of such series; and provided, further, that in the case of any
default of the character specified in Section 5.01(c) with respect to the
Securities of such series no such notice to Holders shall be given until at
least 60 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(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, direction, consent, order, bond,
debenture, note, other evidence of indebtedness 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 or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(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, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit; and
(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 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee or any Authenticating Agent assume no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility and Qualification on Form
T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Section 6.13, may otherwise deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Except as otherwise provided
herein, money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder;
(ii) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(iii) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder, except to the extent that any
such loss, liability or expense was due to the Trustee's negligence
or bad faith.
SECTION 6.08. Intentionally Left Blank.
SECTION 6.09. Corporate Trustee Required; Eligibility. (a) There
shall at all times be a Trustee hereunder which shall:
(i) be a Corporation organized and doing business under thelaws
of the United States of America, any State thereof or the District of
Columbia authorized under such laws to exercise corporate trust
powers;
(ii) be eligible under Section 310(a) of the Trust Indenture Act
to act as trustee under an indenture qualified under the Trust
Indenture Act; and
(iii) have a combined capital and surplus of at least $100,000,000
and subject to supervision or examination by federal or state
authority.
If such Corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
(b) The following Indenture shall be considered specifically
described herein for purposes of clause (i) of the proviso contained in
Section 310(b)(1) of the Trust Indenture Act: [Any to include?].
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by the Company or by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered to
the Trustee, and to the Company in the case of an Act of the Holders.
(d) If at any time:
(i) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect
to the Securities after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least
six months;
(ii) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or
by any such Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
all Securities or the Securities of such series, or (ii) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of such Holder and all other similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities of such series and the appointment of a
successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those Series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of 75% in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee with
respect to the Securities of such series and supersede the successor Trustee
appointed by the Company.
If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with respect to all
Securities, every successor Trustee appointed hereunder 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 Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which,
(i) 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 Securities of that or those
series to which the appointment of such successor Trustee relates,
(ii) if the retiring Trustee is not retiring with respect to all
Securities, 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 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
(iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee.
It being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees co-trustees of the same trust and that each
such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee.
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 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 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 all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company 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 a acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. 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 all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 6.13. Preferential Claims. Reference is made to Section 311
of the Trust Indenture Act. For purposes of Section 311(b)(4) and (6) of
such Act:
(i) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon
demand; and
(ii) "self-liquidating paper" means any draft, xxxx of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods,
wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously
with the creation of the creditor relationship with the Company
arising from the making, drawing, negotiating or incurring of the
draft, xxxx of exchange, acceptance or obligation.
SECTION 6.14. Appointment of Authenticating Agent. At any time when
any of the Securities remain Outstanding the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issuance,
exchange, registration of transfer or partial redemption thereof or pursuant
to Section 3.06, and 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. Wherever reference is made in
the Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a Corporation organized and doing business under the
laws of the United States of America, any state thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any Corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided that such Corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30 days'
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provision of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:___________________________________
As Authenticating Agent
By:___________________________________
Authorized Officer
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee with
respect to the Securities of each series:
(i) semi-annually, not later than each Interest Payment Date for
such series (or, in the case of any series not having semi-annual
Interest Payment Dates, semi-annually, not later than the dates
determined pursuant to Section 3.01 for such series) a list, in such
form as the Trustee may reasonably require, of the names and
addresses of the Holders as of the preceding Regular Record Date (or
as of such other date determined pursuant to Section 3.01 for such
series) therefor, and
(ii) at such 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 so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
SECTION 7.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of the Securities of each
series contained in the most recent list furnished to the Trustee as provided
in Section 7.01 and the names and addresses of such Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any
list of the Holders of Securities of any series furnished to it as provided in
Section 7.01 upon receipt of a new list of such Holders.
(b) If three or more Holders of Securities of any series (herein
referred to as "applicants") apply in writing to the Trustee, and furnish to
the Trustee reasonable proof that each such applicant has owned a Security of
such series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series with respect to
their rights under this Indenture or under the Securities of such series and
is accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall, within five
Business Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 7.02(a) with
respect to the Securities of such series, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series whose names and addresses
appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a), and as to the approximate cost of
mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) a copy of the form or proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless
within five days after such tender the Trustee shall mail to such applicants
and file with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interest of the Holders or would be
in violation of applicable law. Such written statement shall specify the basis
of such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting
their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.02(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 7.02(b).
SECTION 7.03. Reports by Trustee. (a) Within 60 days after May 1 of
each year commencing with the year 1997, the Trustee shall transmit by mail to
all Holders, as their names and addresses appear in the Security Register,
a brief report dated as of such May 1, if any, as may be required by
Section 313(a) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 7.04. Reports by Company. The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of said Sections,
then it shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit by mail to all Holders, as their names and addresses
appear in 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 paragraphs (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by
the Commission.
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc. on Certain Terms. The
Indenture prohibits any consolidation or merger of the Company with or into
any other Person, or successive consolidations or mergers in which the
Company or its successor or successors shall be a party or parties, or
shall prevent any conveyance, transfer or lease of the property of the
Company as an entirety or substantially as an entirety, to any Person,
unless:
(a) in case the Company shall consolidate with or merge into another
Corporation or convey, transfer or lease its properties and assets as, or
substantially as, an entirety to any Person, the Corporation formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer, or lease the properties and assets of the Company,
as, or substantially as, an entirety shall be a Corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any), interest on and any Additional Amounts with respect to
all the Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, or event which after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate or an Opinion of Counsel, stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 8.02. Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
Corporation or any conveyance, transfer or lease of the properties and assets
of the Company as, or substantially as, an entirety to any Person in
accordance with Section 8.01, the successor Corporation formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Corporation has been named as the Company
herein, and thereafter, except in the case of a lease to another Person, the
predecessor Corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to the Company or
the Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor herein and in the Securities;
(b) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Securities (and, if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Company or the Guarantor;
(c) to add any additional Events of Default with respect to
Securities of any or all series;
(d) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the benefit of such
provision;
(e) to secure the Securities of any or all series;
(f) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests of
the Holders of Securities of any series in any material respect;
(g) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons;
(h) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01;
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 6.11(b);
(j) 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 Securities, as herein set forth;
(k) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article 13, provided that no
such supplement shall materially adversely affect the interest of the Holders
of any Securities then Outstanding; or
(l) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interest of the Holders of any Securities then
Outstanding.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
the consent of the Holders of not less than 51% in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any such Security, or reduce the principal amount
thereof or any interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.02, or change any Place of Payment
where, or the currency in which, any such Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of those Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(c) modify any of the provisions of this Section or Section 5.13,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or the provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities or any other series.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal, Any Premium, Interest and
Additional Amounts. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
with respect to the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company will
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of such series may be presented or surrendered for
registration or transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of such series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of Trustee, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.01, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series
of Securities, or as so required, at least one exchange rate agent.
SECTION 10.03. Money for Securities Payments to Be Held in Trust. If
the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
or interest on any Securities of such series, deposit with a Paying Agent a
sum sufficient to pay the principal (or 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 its action or
failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of such series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of
any payment of principal (and premium, if any) or interest on the
Securities of such series; and
(iii) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee (or another trustee satisfying the requirements of Section
6.09) in respect of Government Obligations deposited with the Trustee (or such
other trustee) pursuant to Section 13.04, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on
any Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust. The Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
The Trustee or such Paying Agent, before being required to make any
such repayment, may publish, in the English language, in a newspaper
customarily published on each Business Day and of general circulation in the
City of New York, New York, or to be mailed to such Holder or both, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the earlier of the date of such
publication or such mailing, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 10.04. Corporate Existence. Subject to Article Eight, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of its business and that the loss thereof is not disadvantageous in
any material respect to any Holder.
SECTION 10.05. Statement as to Default. The Company will deliver to
the Trustee, within 120 days after the end of each fiscal year, an Officer's
Certificate, stating as to each signer thereof that he or she is familiar with
the affairs of the Company and whether or not to such officer's knowledge the
Company is in compliance (without regard to any period of grace or requirement
of notice) with all conditions and covenants of this Indenture. The officer
executing such certificate shall be the Company's principal executive, finance
or accounting officer and such certificate need not comply with Section 1.02
of this Indenture.
SECTION 10.06. Additional Amount. If any Securities of a series
provide for the payment of Additional Amounts, the Company agrees to pay to
the Holder of any such Security Additional Amounts as provided in or
pursuant to this Indenture or such Securities. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or the
net proceeds received on the sale or exchange of any Security of any
series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established hereby
or pursuant hereto to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to such terms,
and express mention of the payment of Additional Amounts (if applicable) in
any provision hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first
Interest Payment Date with respect to such series of Securities (or if the
Securities of such series shall not bear interest prior to Maturity, the first
day on which a payment of principal is made), and at least 10 days prior to
each date of payment of principal or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officer's
Certificate, the Company shall furnish to the Trustee and the Paying Agent, if
other than the Trustee, an Officer's Certificate instructing the Trustee and
such Paying Agent whether such payment of principal of an premium, if any, or
interest on the Securities of such series shall be made to Holders of
Securities of such series who are United States aliens without withholding for
or on account of any tax, assessment or other governmental charge described in
the Securities of such series. If any such withholding shall be required, then
such Officer's Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities, and
the Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities.
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified pursuant to
Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. Election to Redeem; Notice to Trustee. In case of
any redemption of less than all the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series are to be redeemed (unless all of
the Securities of a specified tenor are to be redeemed), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
subject to such redemption and not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series and tenor or any integral multiple
thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding
sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
SECTION 11.04. Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed. Failure to give notice by mailing in the manner herein provided to
the Holder of any Securities designated for redemption as a whole or in part,
or any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portion
thereof.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all the Outstanding Securities of any Series
and tenor are to be redeemed, the identification (and, in the case
of partial redemption, the principal amounts) of the particular
Securities to be redeemed;
(iv) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date;
(v) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(vi) that the redemption is for a sinking fund, if such is the
case;
(vii) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
Holder of such Security will receive, without charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed; and
(viii) the CUSIP Number or the Euroclear or the Cedel Bank reference
numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
Notice of redemption of Securities to be redeemed shall be given by
the Company or, on Company Request, by the Trustee at the expense of the
Company.
SECTION 11.05. Deposit of Redemption Price. On or before any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 10.03) an amount of money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be
redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease
to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest to the Redemption
Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Regular or
Special Record Dates according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 11.07. Securities Redeemed in Part. Any Security which is to
be redeemed only in part shall be surrendered at an office or agency of the
Company at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or the Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
If a Global Security is so surrendered, the Company shall execute,
and the Trustee shall authenticate and deliver to the Depository, without
service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered.
ARTICLE 12
GUARANTEE OF NOTES
The Company, at its sole option, may direct the Guarantor to issue
from time to time Guarantees of the Securities. The Guarantee shall be
executed and delivered under this Indenture and will form part of the Security
only at the option and upon the direction of the Company.
SECTION 12.01. Unconditional Guarantee. If directed by the Company,
the Guarantor hereby fully and unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Securities or the obligations of the Company to the
Holders or the Trustee hereunder or thereunder, that: (a) the principal of,
premium, if any, and interest on the Securities will be duly and punctually
paid in full when due, whether at maturity, upon redemption, by acceleration
or otherwise, and interest on the overdue principal and (to the extent
permitted by law) interest, if any, on the Securities and all other
obligations of the Company or the Guarantor to the Holders or the Trustee
hereunder or thereunder (including fees, expenses or other) and all other
obligations under the Indenture or the Securities will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Securities
or any of such other obligations under the Indenture or the Securities, the
same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed, or failing performance of any other obligation of the Company to
the Holders, for whatever reason, the Guarantor shall be obligated to pay, or
to perform or cause the performance of, the same immediately. An Event of
Default under this Indenture or the Securities shall constitute an event of
default under this Guarantee, if any, and shall entitle the Holders of
Securities to accelerate the obligations of the Guarantor hereunder in the
same manner and to the same extent as the obligations of the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Securities or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the Securities with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same, whether or not a Security Guarantee
is affixed to any particular Security, or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
The Guarantor hereby waives the benefit of diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that its
Guarantee, if any, shall not be discharged except by complete performance of
the obligations contained in the Securities, this Indenture and this
Guarantee, if any. This Guarantee, if any, is a guarantee of payment and not
of collection. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or to the Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the
Company or the Guarantor, any amount paid by the Company or the Guarantor to
the Trustee or such Holder, this Guarantee, if any, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor
further agrees that, as between it, on the one hand, and the Holders of
Notes and the Trustee, on the other hand (a) subject to this Article 12,
the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article 5 hereof for the purposes of this Guarantee, if any,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in
the event of any acceleration of such obligations as provided in Article 5
hereof, such obligations (whether or not due and payable) shall forthwith
become due and payable by the Guarantor for the purpose of this Guarantee,
if any.
SECTION 12.02. Execution and Delivery of Guarantee. To further
evidence the Guarantee, if any, set forth in Section 12.01, the Guarantor
hereby agrees that a notation of such Guarantee, if any, shall be endorsed on
each Security authenticated and delivered by the Trustee and executed by
either manual or facsimile signature of an Officer of the Guarantor.
The Guarantor hereby agrees that its Guarantee, if any, set forth in
Section 12.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of such Guarantee, if any.
If an Officer of the Guarantor whose signature is on this Indenture
or a Guarantee, if any, no longer holds that office at the time the Trustee
authenticates such Note or at any time thereafter, such Guarantor's Guarantee,
if any, of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee, if any, set
forth in this Indenture on behalf of the Guarantor.
SECTION 12.03. Release of the Guarantor. Upon the sale, exchange,
transfer or other disposition (by merger or otherwise), other than a lease, of
the Guarantor of all of the Capital Stock of the Guarantor or all, or
substantially all, the assets of the Guarantor, to any person that is not an
Affiliate of the Company, and which sale or other disposition is otherwise in
compliance with the terms of this Indenture, the Guarantor shall be deemed
automatically and unconditionally released and discharged from all obligations
under this Article 12 without any further action required on the part of the
Trustee or any Holder. The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request of the Company accompanied
by an Officers' Certificate certifying as to the compliance with this Section
and the Company's rights of redemption in accordance with the terms of the
Securities in this Section 12.03.
SECTION 12.04. Waiver of Subrogation. Until this Indenture is
discharged and all of the Securities are discharged and paid in full, the
Guarantor hereby irrevocably waives and agrees not to exercise any claim or
other rights which it may now or hereafter acquire against the Company that
arise from the existence, payment, performance or enforcement of the
Company's obligations under the Securities or this Indenture and the
Guarantor's obligations under this Guarantee, if any, and this Indenture,
in any such instance including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, and
any right to participate in any claim or remedy against the Company,
whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the right
to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to the
Guarantor in violation of the preceding sentence and any amounts owing to
the Trustee or the Holders of Securities under the Securities, this
Indenture, or any other document or instrument delivered under or in
connection with such agreements or instruments, shall not have been paid in
full, such amount shall have been deemed to have been paid to the Guarantor
for the benefit of, and held in the trust for the benefit of, the Holders
of the Securities, and shall forthwith be paid to the Trustee for the
benefit of such Holders to be credited and applied to the Securities,
whether matured or unmatured, in accordance with the terms of this
Indenture. The Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 12.05 is knowingly
made in contemplation of such benefits.
SECTION 12.05. Reliance on Judicial Order or Certificate of
Liquidating Agent Regarding Dissolution, etc. of Guarantors . Upon any payment
or distribution of assets of the Guarantor referred to in this Article 12, the
Trustee, subject to the provisions of Section 6.01, and the Holders, shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the amount thereof or payable thereon, the
amounts or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 12.
SECTION 12.06. Limitation of Guarantor's Liability . The Guarantor,
and by its acceptance hereof each Holder, hereby confirms that it is the
intention of all such parties that the Guarantee, if any, by such Guarantor
pursuant to its Guarantee, if any, not constitute a fraudulent transfer or
conveyance for purposes of title 11 of the United States Code, as amended, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the
Holders and such Guarantor hereby irrevocably agree that the obligations of
the Guarantor under this Guarantee, if any, shall be limited to the maximum
amount which, after giving effect to all other contingent and fixed
liabilities of the Guarantor, and will result in the obligations of the
Guarantor under its Guarantee, if any, not constituting such fraudulent
transfer or conveyance.
SECTION 12.07. Obligations Reinstated. The obligations of the
Guarantor hereunder shall continue to be effective or shall be reinstated, as
the case may be, if at any time any payment which would otherwise have reduced
the obligations of the Guarantor hereunder (whether such payment shall have
been made by or on behalf of the Company is rescinded or reclaimed from any of
the Holders upon the insolvency, bankruptcy, liquidation or reorganization of
the Company or the Guarantor or otherwise, all as though such payment had not
been made. If demand for, or acceleration of the time for, payment by the
Company is stayed upon the insolvency, bankruptcy, liquidation or
reorganization of the Company, all such Indebtedness otherwise subject to
demand for payment or acceleration shall nonetheless be payable by each
Guarantor as provided herein.
SECTION 12.08. No Obligation to Take Action Against the Company.
Neither the Trustee nor any other Person shall have any obligation to enforce
or exhaust any rights or remedies or to take any other steps under any
security for the obligations under this Indenture or against the Company or
any other Person or any property of the Company or any other Person before the
Trustee is entitled to demand payment and performance by the Guarantor of its
liabilities and obligations under its Guarantee, if any, or under this
Indenture.
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If pursuant to Section 3.01 provision is
made for either or both of (a) defeasance of the Securities of a series under
Section 13.02 or (b) covenant defeasance of the Securities of a series under
Section 13.03 to apply to Securities of any series, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, shall be applicable to the Securities of
such series, and the Company may at its option, at any time, with respect to
the Securities of such series, elect to have either Section 13.02 (if
applicable) or Section 13.03 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below
in this Article Thirteen.
SECTION 13.02. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on the date the conditions set forth
below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder:
(a) the rights of Holders of Outstanding Securities of such series
to receive, solely from the trust fund described in Section 13.04 and as more
fully set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on and Additional Amounts, if any, with
respect to, such Securities when such payments are due;
(b) the Company's obligations with respect to such Securities under
Sections 3.04, 3.05, 3.06, 6.07, 10.02, 10.03 and 10.06 (but only to the
extent that any Additional Amounts payable exceed the amount deposited in
respect of such Additional Amounts pursuant to Section 13.04(a) below);
(c) the rights, powers, trusts, duties and immunities and other
provisions in respect of the Trustee hereunder; and
(d) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may
exercise its option under this Section 13.02 notwithstanding the prior
exercise of its option under Section 13.03 with respect to the Securities of
such series.
SECTION 13.03. Covenant Defeasance. Upon the Company's exercise of
the above option applicable to this Section, the Company shall be released
from its obligations under Sections 8.01, 10.05, 5.01(c) (as to Sections 8.01
and 10.05, 5.01(e), 5.01(f) and 5.01(g) (if Section 5.01(g) is specified as
applicable to the Securities of such series) with respect to the Outstanding
Securities of such series on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect
to the Outstanding Securities of such series, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of
any reference in any such Section to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby. Following a covenant defeasance, payment of
the Securities of such series may not be accelerated because of an Event of
Default specified above in this Section 13.03.
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 13.02 or
Section 13.03 to the Outstanding Securities of such series.
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.09 who shall agree to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A) an amount in
Dollars or in such Foreign Currency in which such Securities are then
specified as payable at Stated Maturity, or (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, within two weeks of the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient,
without reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and each installment of principal of
(and premium, if an) and interest on the Outstanding Securities of such series
on the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities. Before such a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of any series of
Securities at a future date in accordance with any redemption provisions
contained in the Supplemental Indenture relating to such series, which shall
be given effect in applying the foregoing.
(b) No Event of Default or event with which notice of lapse of time
or both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such deposit
and, with respect to defeasance only, at any time during the period ending on
the 123rd day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to any securities of the
Company.
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Company is a party or by which it
is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be deleted.
(f) In the case of an election under Section 13.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will
be subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(g) In the case of an election under Section 13.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(h) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 3.01.
(i) The Company shall have delivered to the Trustee an Officer's
Certificate or an Opinion of Counsel, stating that all conditions precedent
provided for in the Indenture relating to either the defeasance under Section
13.02 or the covenant defeasance under Section 13.03 (as the case may be) have
been complied with.
SECTION 13.05. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 10.03, all money and Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee -- collectively, for purposes of this Section, the
"Trustee") pursuant to Section 13.04 in respect of the Outstanding Securities
of such series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but not including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Security, if after a deposit referred in Section 13.02 has been made, (a)
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.01 or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
13.02 has been made in respect of such Security, or (b) a Conversion Event
occurs in respect of the Foreign Currency in which the deposit pursuant to
Section 13.02 has been made, the indebtedness represented by such Security
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any), and interest,
if any, on and Additional Amounts, if any, with respect to, such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in which such
Security becomes payable as a result of such election or Conversion Event
based on (x) in the case of payments made pursuant to clause (a) above, the
applicable market exchange rate for such Currency in effect on the second
Business Day prior to each payment date, or (y) with respect to a Conversion
Event, the applicable market exchange rate for such Foreign Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
13.04 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent defeasance or covenant defeasance.
ARTICLE 14
SINKING FUNDS
SECTION 14.01. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise permitted or required in or
pursuant to this Indenture or any Security of such series issued pursuant to
this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred to
as an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 14.02. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series and this Indenture.
SECTION 14.02. Satisfaction of Sinking Fund Payments with Securities.
The Company may (a) deliver Outstanding Securities of a series (other than any
of such Securities previously called for redemption) and (b) apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such series of Securities, or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment required to be made pursuant to the terms of such
Securities, as provided by the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such required sinking fund payment shall be reduced
accordingly.
SECTION 14.03. Redemption of Securities for Sinking Fund. Not less
than 75 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
such series pursuant to the terms of such series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 14.02, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, hereof and will also
deliver to the Trustee any Securities to be so delivered. Not less than 45
days prior to each such sinking fund payment date, the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.03 and cause notice of the redemption
thereof to be given the name of and at the expense of the Company in the
manner provided in Section 11.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.06 and 11.07.
ARTICLE 15
SECURITIES IN FOREIGN CURRENCIES
SECTION 15.01. Applicability of Article. Whenever this Indenture
provides for (i) any action by, or the determination of any of the rights of,
Holders of Securities of any series in which not all of such Securities are
denominated in the same Currency, or (ii) any distribution to Holders of
Securities, in the absence of any provision to the contrary in this Indenture
or the Securities, any amount in respect of any Security denominated in a
Currency other than Dollars shall be treated for any such action or
distribution as that amount of Dollars that could be obtained for such amount
on such reasonable basis of exchange and as of the record date with respect to
Securities of such series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Company may specify in a written notice to the Trustee
or, in the absence of such written notice, as the Trustee may determine.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested, all as of the day and year first above written.
FDX CORPORATION, Issuer
Attest:
By:______________________________ By:______________________________
Name: Name:
Title: Title:
FEDERAL EXPRESS CORPORATION, as
Guarantor
Attest:
By:______________________________ By:______________________________
Name: Name:
Title: Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
Attest:
By:______________________________ By:______________________________
Name: Name:
Title: Title:
SCHEDULE I
FDX CORPORATION,
[FEDERAL EXPRESS CORPORATION]
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Supplemental Indenture
No. __
Dated as of _____________, ______
___% Notes due __________________, ______
SUPPLEMENTAL INDENTURE NO. ___, dated as of __________, _____ between
FDX Corporation, a Delaware Corporation (the "Company") [, Federal Express
Corporation, a Delaware Corporation (the "Guarantor")] and The First National
Bank of Chicago, a national banking association organized under the laws of
the United States of America (herein called the "Trustee") as Trustee (the
"Trustee").
RECITALS OF THE COMPANY
The Company, the Guarantor and the Trustee have executed and
delivered an Indenture dated as of __________, 1998, as amended or
supplemented (the "Indenture") to provide for the issuance from time to time
of the Company's Securities.
Sections 2.01 and 3.01 of the Indenture provide that the form and
terms of Securities of any series may be established pursuant to an indenture
supplemental to the Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and under the Indenture and
duly issued by the Company and to make this Supplemental Indenture No. ___ a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, this Indenture witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the holders hereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the holders of the Securities of the series
hereby established, as follows:
ARTICLE 1
RELATION TO THE INDENTURE; DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
SECTION 1.01. Relation to the Indenture. This Supplemental Indenture
No. ___ constitutes an integral part of the Indenture.
SECTION 1.02. Definitions and Other Provisions of General Application.
For all purposes of this Supplemental Indenture No. ___ unless otherwise
specified herein:
(a) all terms defined in this Indenture which are used and not
otherwise defined herein shall have the meanings they are given in the
Indenture; and
(b) the provisions of general application stated in Section 1.01 of
the Indenture shall apply to this Supplemental Indenture No. __, except that
the words "herein," "hereof," "hereto" and "hereunder" and other words of
similar import refer to this Supplemental Indenture as a whole and not to the
Indenture or any particular Article, Section or other subdivision of the
Indenture or this Supplemental Indenture No. ___.
ARTICLE 2
THE SERIES OF NOTES
SECTION 2.01. Title. There shall be a series of Securities designated
the "___% Notes due __________, ____" (the "Notes").
SECTION 2.02. Principal Amount. The aggregate principal amount of the
Notes which may be authenticated and delivered under this Supplemental
Indenture shall not exceed $__________ (except for Notes which may be
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or
11.07 of the Indenture).
SECTION 2.03. Maturity. The date on which the principal of the Notes
shall be payable shall be __________.
SECTION 2.04. Interest. [The Notes shall bear interest at the rate of
[ ]% per annum. Interest shall accrue from __________, _____ or from the most
recent Interest Payment Date to which interest has been paid or provided for.
Accrued interest shall be payable on _________, _____ and on each _____ and
_____ thereafter, to the persons in whose names the Notes are registered at
the close of business on the preceding _____ or _____, as the case may be.]
[Insert other interest provisions if necessary]
SECTION 2.05. Place of Payment. [The Place of Payment for the Notes
shall be at the Corporate Trust office of the Trustee at ____________ or such
other office of the Paying Agent as the Paying Agent may reasonably request by
notice to the Company and the Trustee (if the Paying Agent is not the
Trustee).]
SECTION 2.06. Redemption. [Insert redemption terms] The provisions of
Article Thirteen of the Indenture [shall/shall not] apply to the Notes.
SECTION 2.07. Intentionally Left Blank.
SECTION 2.08. Form of Notes. The Notes shall be in the form of
Exhibit A attached hereto.
SECTION 2.09. Currency. [Insert currency terms.]
SECTION 2.10. Sinking Fund. [Insert sinking fund terms.]
SECTION 2.11. Additional Amounts. The provisions of Section 10.06 of
the Indenture [shall/shall not] apply to the Notes.
SECTION 2.12. The Guaranty. [Insert guaranty terms]
ARTICLE 3
MISCELLANEOUS PROVISIONS
SECTION 3.01. Supplemental Indenture. The Indenture, as supplemented
and amended by this Supplemental Indenture No. __, is in all respects hereby
adopted, ratified and confirmed.
SECTION 3.02. Counterparts. This Supplemental Indenture No. __ 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.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. __ to be duly executed, as of the day and year first written
above.
FDX CORPORATION
Attest:
By:______________________________ By:______________________________
Name: Name:
Title: Title:
FEDERAL EXPRESS CORPORATION
Attest:
By:______________________________ By:______________________________
Name: Name:
Title: Title:
THE FIRST NATIONAL BANK OF
CHICAGO
Attest:
By:______________________________ By:______________________________
Name: Name:
Title: Title:
EXHIBIT A
TO INDENTURE
REGISTERED PRINCIPAL AMOUNT:
No.___________________ $ __________________
CUSIP NO._____________
FDX CORPORATION
__% Note due ________, ____
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY") (55 XXXXX
XXXXXX, XXX XXXX, XXX XXXX), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
FDX Corporation, a Delaware Corporation, (the "Company" which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay
Cede & Co.
C/O the Depository Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or registered assigns, the principal sum of DOLLARS
on __________________, _____________ the "Maturity Date") and to pay interest
thereon from _______________, _______________________ or from the most recent
"Interest Payment Date" to which
interest has been paid or duly provided for, semi-annually on ______________
and ________________ of each year, commencing _____________, ___________, and
on the Maturity Date, at the rate of % per annum, until the principal hereof
is paid or duly provided for. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the "Regular
Record Date" for such interest, which shall be the __________ or ___________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder
on such Regular Record Date and may either be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee referred to on the reverse
hereof, notice of which shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The Company will at all times appoint and maintain a Paying Agent
(which may be the Trustee) authorized by the Company to pay the principal of
and interest on any Notes of this series on behalf of the Company and having
an office or agency in Chicago, Illinois and in such other cities, if any, as
the Company may designate in writing to the Trustee (the "Place of Payment")
where Notes of this series may be presented or surrendered for payment and
where notices, designations or requests in respect for payments with respect
to Notes of this series may be served. The Company has initially appointed The
First National Bank of Chicago as such Paying Agent.
Interest payments on this Note will be computed and paid on the basis
of a 360-day year of twelve 30-day months. Interest payable on this Note on
any Interest Payment Date and on the Maturity Date will include interest
accrued from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for (or from and including __________,
_______________, if no interest has been paid on this Note) to but excluding
such Interest Payment Date or the Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day (as defined below), principal or interest payable with
respect to such Interest Payment Date or Maturity Date, as the case may be,
will be paid on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be. "Business Day"
means any day other than Saturday, Sunday or other day on which banking
institutions in New York, Illinois or Tennessee are obligated or authorized by
law to close.
The principal and interest payable on this Note will be made by wire
transfer of immediately available funds to the Holder hereof in such currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
FDX CORPORATION
By:______________________________
Name:
Title:
Attest:
By:______________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to
in the within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO, as Trustee
By:______________________________
Authorized Signatory
Dated:___________________________
FDX CORPORATION
___% Note due _______, ____
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), limited in aggregate principal amount to
$________ (except as otherwise provided in the Indenture), issued and to be
issued as one series of debt securities of the Company under an Indenture,
dated as of________, 1998, as amended and supplemented from time to time (the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and
the Holders of the Notes and of the terms upon which the Notes are, and are to
be, authenticated and delivered. In addition to the Notes, the Company is
authorized to issue an unlimited amount of debt securities in one or more
series (herein collectively with the Notes called the "Debt Securities") under
the Indenture.
This Note is not redeemable at the option of the Company or at the
option of the Holder prior to the Maturity Date [and is not subject to any
sinking fund].
In case an Event of Default with respect to the Notes of this series
shall occur and be continuing, the principal of the Notes of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of (i)
the entire indebtedness of this Note or (ii) certain respective covenants and
Events of Default with respect to this Note, in each case upon compliance with
certain conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Debt Securities or each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of at least 51% in principal amount of
the Debt Securities at the time Outstanding or the consent of 51% in principal
amount of each series of Debt Securities to be affected if less than all
series are to be affected by such modification or amendment. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Debt Securities of each series at the time
Outstanding, on behalf of the Holders of all Debt Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note or
Notes issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, places and rate, and in the currency herein prescribed.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in the Place of Payment, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar, duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, Notes of this series issued in definitive
registered form are exchangeable for the same aggregate principal amount of
Notes of this series and of like tenor and authorized denominations, as
requested by the Holder surrendering the same.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple of $1,000 in
excess thereof.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of
the Corporation in the Indenture or any indenture supplemental thereto or in
any Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, of the Corporation or of any successor Corporation, either directly or
through the Corporation or any successor Corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance hereof and
as part of the consideration for the issue hereof.
At the option of the Corporation and upon satisfaction of certain
conditions specified in the Indenture, either (a) the Corporation shall be
deemed to have paid and discharged the entire indebtedness on the Notes or (b)
the Corporation need not comply with certain covenants contained in the
Indenture, in each case upon the deposit by the Corporation with the Trustee
in trust for the Holders of the Notes of an amount of funds or obligations
issued or guaranteed by the United States of America sufficient to pay and
discharge upon the stated maturity thereof the entire indebtedness evidenced
by the Notes, all as provided in the Indenture .
This Note shall be governed by and construed in accordance with the
laws of the State of Tennessee.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT ____________________ Custodian _______________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
______________________________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and
transfer(s) unto _____________________________________________________________
______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE:__________________________________________________________________
Please Print or Type Name and Address including Postal Zip Code of Assignee:
______________________________________________________________________________
______________________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________________________________________________________
to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Dated:_______________________________
Signature Guaranteed
_____________________________________
NOTICE: Signature must be guaranteed NOTICE: The signature to this
by a member firm of the New York assignment must correspond with the
Stock Exchange or a commercial bank or name as written upon the face of the
trust company. within Note in every particular,
without alteration or enlargement
or any change whatever
EXHIBIT B
TO INDENTURE
GUARANTEE
The Guarantor (as defined in the Indenture referred to in
the Security upon which this notation is endorsed) hereby jointly and
severally fully and unconditionally guarantees (such guarantee being referred
to herein as the "Guarantee") the due and punctual payment of the principal
of, premium, if any, and interest on the Securities, whether at maturity, upon
redemption, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal, premium and interest, if any, on the
Securities, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee, all in accordance with the terms
set forth in Article Twelve of the Indenture.
The obligations of the Guarantor to the Holders of
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth, to the extent and in the manner provided, in Article
Twelve of the Indenture, and reference is hereby made to such Indenture for
the precise terms of the Guarantee therein made.
The Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
the Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in
accordance with the laws of the State of Tennessee.
This Guarantee is subject to release upon the terms set
forth in the Indenture.
FEDERAL EXPRESS CORPORATION,
as Guarantor
By:_____________________________
Name:
Title:
