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Exhibit 4.6
Sabre Holdings Corporation
TO
SunTrust Bank
as Trustee
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INDENTURE
Dated as of August 3, 2001
Providing for Issuance of
Debt Securities in Series
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Sabre Holdings Corporation
Certain Sections of this Indenture relating to Sections 310 through
318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
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(SECTION) 310 (a)(1) ...................................................609
(a)(2) ...................................................609
(a)(3) ........................................Not Applicable
(a)(4) ........................................Not Applicable
(b) ..................................................608,610
(SECTION) 311 (a) ......................................................613
(b) ......................................................613
(SECTION) 312 (a) ..............................................701, 702(a)
(b) ...................................................702(b)
(c) ...................................................702(c)
(SECTION) 313 (a) ...................................................703(a)
(b) ...................................................703(a)
(c) ...................................................703(a)
(d) ...................................................703(b)
(SECTION) 314 (a) ......................................................704
(a)(4) ...............................................101,704
(b) ...........................................Not Applicable
(c)(1) ...................................................102
(c)(2) ...................................................102
(c)(3) ........................................Not Applicable
(d) ...........................................Not Applicable
(e) ......................................................102
(SECTION) 315 (a) ......................................................601
(b) ......................................................602
(c) ......................................................601
(d) ......................................................601
(e) ......................................................514
(SECTION) 316 (a) ......................................................101
(a)(1)(A) ............................................502,512
(a)(1)(B) ................................................513
(a)(2).........................................Not Applicable
(b).......................................................508
(c)....................................................104(c)
(SECTION) 317 (a)(1)....................................................503
(a)(2)....................................................504
(b)......................................................1003
(SECTION) 318 (a).......................................................107
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
Page
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Article One
Definitions and Other Provisions of General Application
Section 101. Definitions.................................................1
Section 102. Compliance Certificates and Opinions........................8
Section 103. Form of Documents Delivered to Trustee......................8
Section 104. Acts of Holders; Record Dates...............................9
Section 105. Notices, Etc...............................................10
Section 106. Notice to Holders; Waiver..................................11
Section 107. Conflict with Trust Indenture Act..........................11
Section 108. Effect of Headings and Table of Contents...................11
Section 109. Successors and Assigns.....................................12
Section 110. Separability Clause........................................12
Section 111. Benefits of Indenture......................................12
Section 112. Governing Law..............................................12
Section 113. Legal Holidays.............................................12
Article Two
Security Forms
Section 201. Forms Generally............................................12
Section 202. Form of Face of Security...................................13
Section 203. Form of Reverse of Security................................15
Section 204. Additional Provisions Required in Book-Entry Security......19
Section 205. Form of Trustee's Certificate of Authentication............19
Article Three
The Securities
Section 301. Amount Unlimited; Issuable in Series.......................20
Section 302. Denominations..............................................23
Section 303. Execution, Authentication, Delivery and Dating.............23
Section 304. Temporary Securities.......................................26
Section 305. Registration; Registration of Transfer and Exchange........26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...........28
Section 307. Payment of Interest; Interest Rights Preserved.............29
Section 308. Persons Deemed Owners......................................30
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Section 309. Cancellation...............................................30
Section 310. Computation of Interest....................................31
Section 311. CUSIP Numbers..............................................31
Article Four
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture....................31
Section 402. Application of Trust Money.................................33
Article Five
Remedies
Section 501. Events of Default..........................................33
Section 502. Acceleration of Maturity; Rescission and Annulment.........35
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.................................................37
Section 504. Trustee May File Proofs of Claim...........................37
Section 505. Trustee May Enforce Claims Without Possession of
Securities.................................................38
Section 506. Application of Money Collected.............................38
Section 507. Limitation on Suits........................................38
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.......................................39
Section 509. Restoration of Rights and Remedies.........................39
Section 510. Rights and Remedies Cumulative.............................40
Section 511. Delay of Omission Not Waiver...............................40
Section 512. Control by Holders.........................................40
Section 513. Waiver of Past Defaults....................................41
Section 514. Undertaking for Costs......................................41
Article Six
The Trustee
Section 601. Certain Duties and Responsibilities........................41
Section 602. Notice of Defaults.........................................42
Section 603. Certain Rights of Trustee..................................42
Section 604. Not Responsible for Recitals or Issuance of Securities.....43
Section 605. May Hold Securities and Serve as Trustee Under Other
Indentures.................................................44
Section 606. Money Held in Trust........................................44
Section 607. Compensation and Reimbursement.............................44
Section 608. Disqualification; Conflicting Interests....................45
Section 609. Corporate Trustee Required; Eligibility....................45
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Section 610. Resignation and Removal; Appointment of Successor..........45
Section 611. Acceptance of Appointment by Successor.....................47
Section 612. Merger, Conversion, Consolidation or Succession to
Business...................................................49
Section 613. Preferential Collection of Claims Against Company..........49
Section 614. Investment of Certain Payments Held by the Trustee.........49
Section 615. Appointment of Authenticating Agent........................50
Article Seven
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders..52
Section 702. Preservation of Information; Communications to Holders.....52
Section 703. Reports by Trustee.........................................52
Section 704. Reports by Company.........................................53
Article Eight
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc...............................53
Section 802. Successor Substituted......................................54
Section 803. Officers' Certificate and Opinion of Counsel..............54
Article Nine
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.........55
Section 902. Supplemental Indentures with Consent of Holders............56
Section 903. Execution of Supplemental Indentures.......................57
Section 904. Effect of Supplemental Indentures..........................58
Section 905. Conformity with Trust Indenture Act........................58
Section 906. Reference in Securities to Supplemental Indentures.........58
Article Ten
Covenants
Section 1001. Payment of Principal, Premium and Interest.................58
Section 1002. Maintenance of Office or Agency............................58
Section 1003. Money for Securities Payments to Be Held in Trust..........59
Section 1004. Corporate Existence........................................60
Section 1005. Restrictions on Secured Debt...............................61
Section 1006. Restrictions on Sale and Leaseback Transactions............61
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Section 1007. Waiver of Certain Covenants................................62
Section 1008. Compliance Certificate.....................................62
Article Eleven
Redemption of Securities
Section 1101. Applicability of Article...................................63
Section 1102. Election to Redeem; Notice to Trustee......................63
Section 1103. Selection by Trustee of Securities to Be Redeemed..........63
Section 1104. Notice of Redemption.......................................64
Section 1105. Deposit of Redemption Price................................65
Section 1106. Securities Payable on Redemption Date......................65
Section 1107. Securities Redeemed in Part................................65
Article Twelve
Sinking Funds
Section 1201. Applicability of Article...................................66
Section 1202. Satisfaction of Sinking Fund Payments with Securities......66
Section 1203. Redemption of Securities for Sinking Fund..................66
Article Thirteen
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance..........................67
Section 1302. Defeasance and Discharge...................................67
Section 1303. Covenant Defeasance........................................68
Section 1304. Conditions to Defeasance or Covenant Defeasance............68
Section 1305. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions..............71
Section 1306. Reinstatement..............................................72
Section 1307. Qualifying Trustee.........................................72
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Article Fourteen
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 1401. Exemption from Individual Liability........................72
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE, dated as of August 3, 2001, between
Sabre
Holdings Corporation, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company"), having its
principal office at 0000 Xxxx Xxxxxx Xxxxxxxxx, Xxxx Xxxxx, Xxxxx 00000, and
SunTrust Bank, a Georgia banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this
Indenture.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
Article One
Definitions and Other Provisions of General Application
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have
the meanings assigned to them in this
Article and include the plural as well as
the singular;
(2) 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;
(3) 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" with respect to any computation
required or permitted hereunder shall
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mean such accounting principles as are
generally accepted at the date of such
computation in the United States of America;
and
(4) unless the context otherwise requires, any
reference to an "Article" or a "Section"
refers to an Article or a Section, as the
case may be, of this Indenture; and
(5) the words "herein", "hereof" and
"hereunder" and other words of similar
import refer to this Indenture as a whole
and not to any particular Article, Section
or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"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.
"Attributable Debt" means , in connection with a sale and
leaseback transaction involving a lease with an original term of more than 12
months, (i) the present value of the total net amount of rent required to be
paid under such lease during the remaining term of the lease (including any
renewal term or period for which such lease has been extended), discounted at
the rate of interest set forth or implicit in the terms of such lease or, if
not practicable to determine such a rate, the weighted average interest rate
per year borne by the debt securities of each series outstanding under this
Indenture compounded semi-annually, or (ii) if the obligation with respect to
such sale and leaseback transaction is required to be classified and
accounted for as a capitalized lease for financial reporting purposes in
accordance with generally accepted accounting principles, the amount equal to
the capitalized amount of such obligation determined in accordance with
generally accepted accounting principles and included in the financial
statements of the lessee.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 615 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
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"Book-Entry Security" means a Security in the form
prescribed in Section 204 evidencing all or part of a series of Securities,
issued to the Depositary for such series or its nominee, and registered in
the name of such Depositary or such nominee.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are
authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act
of 1934, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, its Chief Financial
Officer, a Vice Chairman of the Board or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Assets" means the aggregate amount of
assets, less reserves and other deductible items, after deducting current
liabilities, as shown on Company's most recent consolidated balance sheet and
prepared in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal 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 00 Xxxx Xxxxx, X.X., 00xx Xxxxx, Xxxxxxx,
Xxxxxxx 00000-0000, except that, with respect to presentation of the
Securities for payment or registration of transfers or exchanges and the
location of the register, such term means the office or agency of the Trustee
at which at any particular time its corporate agency business shall be
conducted.
"Defaulted Interest" has the meaning specified in Section
307.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the Person designated as Depositary for such series by
the Company pursuant to Section 301, which Person shall be a clearing agency
registered under the Securities Exchange Act of 1934; and if at any time
there is
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more than one such Person, "Depositary" as used with respect to the
Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"Domestic Subsidiary" means a subsidiary of the Company
which owns a Principal Domestic Property and transacts substantially all of
its business or maintains substantially all of its property within the United
States, excluding its territories, possessions and Puerto Rico. The term does
not include any subsidiary which is engaged primarily in financing operations
outside of the United States or in leasing personal property or financing
inventory, receivables or other property.
"Event of Default" has the meaning specified in Section 501.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, including, for all purposes of this instrument, and any
such supplemental indenture, the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall also include
the forms and terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity,
means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Maturity", when used with respect to any Security, means
the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer, a Vice Chairman of the Board or a Vice President and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company, and who shall be acceptable to the
Trustee.
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"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or any of its Affiliates) in trust 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 Section
1104 of this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
1302 and 1303, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Thirteen; and
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations
required by Section 313 of the Trust Indenture Act, (i) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of a Security denominated
in one or more foreign currencies or currency units shall be the U.S. dollar
equivalent, determined in the manner provided as contemplated by Section 301
on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, (iii) the principal
amount of any indexed security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the principal face amount of such indexed
security at original issuance, unless otherwise provided with respect to such
Security pursuant to Section 301, and (iv) except for the purpose of making
the calculations required by
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Section 313 of the Trust Indenture Act, Securities owned by the Company or
any other obligor upon the Securities 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,
waiver or other action, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of or any premium or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government or any agency
or political subdivision thereof
"Place of Payment", when used with respect to the
Securities of any series, means the place or places where the principal of
and any premium and interest on the Securities of that series are payable as
specified as contemplated by Sections 301 and 1002.
"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 306 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.
"Principal Domestic Property" means any building, structure
or other facility, together with the land on which it is erected and fixtures
comprising a part of it, used primarily for information processing, research
or housing hardware or software required for information processing, located
in the United States, excluding its territories, possessions and Puerto Rico,
owned or leased by the Company or one of the Company's subsidiaries and
having a net book value in excess of 1% of Consolidated Net Assets, other
than any such building, structure or other facility or a portion which the
Company's principal executive officer, president and principal financial
officer determine in good faith is not of material importance to the total
business conducted or assets owned by the Company and its subsidiaries as an
entirety.
"Redemption Date", when used with respect to any Security
to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
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"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date
specified for that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means any officer assigned by the Trustee to administer corporate
trust matters and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or
her knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security
or any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation, association or other
business entity of which more than 50% of the outstanding Voting Interests is
owned directly or indirectly by the Company or by one or more other
Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument 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, and if at any time there is more than one such Person, "Trustee"
as used with respect to the Securities of any series shall mean the Trustee
with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
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"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".
"Voting Interests" means, with respect to any Person, any
and all shares, interests, participations or other equivalents in equity of
such Person, ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
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 such certificates and opinions as may be
required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officers' Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel,
and shall comply with the requirements of the Trust Indenture Act and any
other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include
(1) a statement that each individual
signing such certificate or opinion has read
such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature
and scope of the examination or
investigation upon which the statements or
opinions contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of
each such individual, he has made such
examination or investigation as is necessary
to enable him to express an informed opinion
as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the
opinion of each such individual, such
condition or covenant has been complied
with.
Section 103. 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
-8-
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 a certificate or
representations by counsel or an opinion of counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate, representations or opinion with respect to the matters upon
which such officer's certificate or opinion is based are erroneous. Any such
certificate or representations of counsel or 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, they may, but need not, be
consolidated and form one instrument.
Section 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made 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 their
agent duly appointed in writing; and, except as
herein otherwise expressly provided such action shall
become effective when such instrument or instruments
are delivered to the Trustee 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 601) 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 by the
affidavit of a witness of such execution or by a
certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such
instrument or writing acknowledged to him the
execution thereof. Where such execution is by a
signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof
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of his authority. The fact and date of the execution
of any such instrument or writing, or the authority
of the Person executing the same, may also be proved
in any other manner which the Trustee deems
sufficient.
(c) The Company may fix any day as the record date for
the purpose of determining the Holders of Securities
of any series entitled to give or take any request,
demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by
Holders of Securities of such series. If not set by
the Company prior to the first solicitation of a
Holder of Securities of such series made by any
Person in respect of any such action, or, in the case
of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section
701) prior to such first solicitation or vote, as the
case may be. With regard to any record date for
action to be taken by the Holders of one or more
series of Securities, only the Holders of Securities
of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote
on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(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 or the Company in reliance thereon, whether
or not notation of such action is made upon such
Security.
Section 105. 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,
(1) the Trustee by any Holder or by 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, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose
hereunder (unless otherwise herein expressly
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provided) if in writing and mailed,
first-class postage prepaid, to the Company
addressed to it at the address of its
principal office specified in the first
paragraph of this instrument or at any other
address previously furnished in writing to
the Trustee by the Company, Attention:
Treasurer.
Section 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In 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 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. 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.
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Section 109. 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 110. 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 111. 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 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
of the Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity; PROVIDED, that no interest shall accrue for the intervening period.
ARTICLE TWO
SECURITY FORMS
Section 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form 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,
-12-
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
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
If the form of Securities of any series is established by, or 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 or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery
of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may
be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. FORM OF FACE OF SECURITY.
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND
THE REGULATIONS THEREUNDER.]
SABRE HOLDINGS CORPORATION
No. ______ $______
CUSIP NO. ____________
Sabre Holdings Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________________ or registered
assigns, the principal sum of ____________ Dollars on ______ [IF THE SECURITY IS
TO BEAR INTEREST PRIOR TO MATURITY, INSERT, 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 ______ in each year,
commencing ______, at the rate of __% per annum, until the principal hereof is
paid or made available for payment [IF APPLICABLE, INSERT -- and (to the extent
that the payment of such interest shall be legally enforceable) at the rate of
___% per annum on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) 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 will forthwith
cease to be payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name
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this Security (or one or more Predecessor Securities) 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, notice whereof shall be given to Holders
of Securities 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
Securities of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY,
INSERT -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security shall
bear interest at the rate of __% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on demand.
[Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of __% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]]
Payment of the principal of (and premium, if any) and [IF
APPLICABLE, INSERT -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in ____________, in
such coin or currency of [the United States of America] as at the time of
payment is legal tender for payment of public and private debts [IF APPLICABLE,
INSERT --; PROVIDED, HOWEVER, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Security Register, PROVIDED that such Person shall have given the Trustee
written wire instructions at least five Business Days prior to the applicable
Interest Payment Date.]
[IF THE SECURITY IS PAYABLE IN A FOREIGN CURRENCY, CURRENCY
UNIT OR COMPOSITE CURRENCY INSERT -- the appropriate provision.]
Reference is hereby made to the further provisions of this
Security 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 referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Sabre Holdings Corporation
By
------------------------
Title:
Attest:
------------------------------
Title:
Section 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of August 3, 2001 (herein called the
"Indenture"), between the Company and SunTrust Bank, as Trustee (herein called
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, the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof [,
intially limited in aggregate principal amount to $______].
[IF APPLICABLE, INSERT -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, such 30 or 60 days, as the case may be, to be counted from the date notice
is mailed, [IF APPLICABLE, INSERT -- (1) on ______ in any year commencing with
the year ______ and ending with the year ______ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after ____________, 20__], as a whole or in
part, at the election of the Company, [at Redemption Prices determined as
follows:] at the following Redemption Prices (expressed as percentages of the
principal amount): [If redeemed [on or before ________, ___%]: If redeemed on or
before ______, and if redeemed] during the 12-month period beginning ______ of
the years indicated,
Year Redemption Year Redemption
---- Price ---- Price
----- -----
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and thereafter at a Redemption Price equal to __% of the principal
amount,]together in the case of any such redemption [IF APPLICABLE, INSERT --
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Regular Record Dates or Special
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, such 30 or 60 days, as the case may be, to be counted from the date notice
is mailed, (1) on _____ in any year commencing with the year ___ and ending with
the year ___ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after __________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning __________ of the years indicated,
Year Redemption Price Redemption Price for
---- For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the Sinking Fund of the Sinking Fund
------------------- ---------------------
and thereafter at a Redemption Price equal to ____% of the
principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Regular Record Dates or Special Record Dates
referred to on the face hereof, all as provided in the Indenture.]
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[The sinking fund for this series provides for the redemption
on _______ in each year beginning with the year _______ and ending with the year
_______ of [not less than $_______ ("mandatory sinking fund") and not more than]
$_______ aggregate principal amount of Securities of this series. Securities of
this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made [in the inverse order in
which they become due].]
[IF THE SECURITIES DO NOT HAVE A SINKING FUND, THEN INSERT --
the Securities do not have the benefit of any sinking fund obligations.]
[IF THE SECURITY IS SUBJECT TO REDEMPTION, INSERT -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[IF THE SECURITY IS NOT SUBJECT TO REDEMPTION, INSERT -- The
Securities of this series are not redeemable prior to Stated Maturity.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions
for defeasance at any time of [the entire indebtedness of this Security]
[and/or] [certain restrictive covenants and Events of Default with respect to
this Security] [, in each case] upon compliance with certain conditions set
forth in the Indenture.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to - insert formula for determining
the amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
[IF THE SECURITY IS AN INDEXED SECURITY, INSERT -- the
appropriate provision.]
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
-17-
rights of the Holders of the Securities of each series to be adversely
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be adversely affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all 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 Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable
in the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, 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 his attorney duly authorized in writing, and thereupon one
or more new Securities 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.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 or integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for
a like aggregate principal amount of Securities of this series and of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
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.
No recourse shall be had for the payment of the principal
of (or premium, if any) or the interest on this Security, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of
the Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer, director or employee, as such, past,
present or future, of the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of
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law, or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Prior to due presentment of this 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 this Security is registered as the
owner hereof for all purposes (subject to Section 307 of the Indenture),
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture. The
Indenture and this Security shall be governed by and construed in accordance
with the laws of the State of
New York without regard to the conflicts of
laws principles thereof.
Section 204. ADDITIONAL PROVISIONS REQUIRED IN BOOK-ENTRY SECURITY.
Any Book-Entry Security issued hereunder shall, in addition
to the provisions contained in Sections 202 and 203 and in addition to any
legend required by the Depositary, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the meaning
of the Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable for
Securities registered in the name of a Person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture and
may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary."
Section 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustees certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Dated:_______________
SunTrust Bank,
As Trustee
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By
--------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. 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 from time to time in one or more
series. There shall be established in one or more Board Resolutions or pursuant
to authority granted by one or more Board Resolutions and, subject to Section
303, set forth in, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1) and
(2), below), if so provided, may be determined from time to time by the Company
with respect to unissued Securities of the series and set forth in such
Securities of the series when issued from time to time):
(1) the title of the Securities of the series
(which shall distinguish the Securities of
the series from Securities of any other
series);
(2) any limit upon the aggregate principal
amount of the Securities of the series
which may be authenticated and delivered
under this Indenture (except for Securities
authenticated and delivered upon
registration of transfer of, or in exchange
for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306,
906 or 1107 and except for any Securities
which, pursuant to Section 303, are deemed
never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a
Security of the series shall be payable, if
other than the Person in whose name that
Security (or one or more Predecessor
Securities) is registered at the close of
business on the Regular Record Date for such
interest;
(4) the date or dates on which the principal
of and premium, if any, on the Securities
of the series is payable, or method by
which such date or dates shall be
determined or extended;
-20-
(5) the rate or rates at which the Securities
of the series shall bear interest, if any,
or the method of calculating such rate or
rates of interest, the date or dates from
which such interest shall accrue or the
method by which such date or dates shall
be determined, the Interest Payment Dates
on which any such interest shall be payable
and the Regular Record Date for any
interest payable on any Interest Payment
Date;
(6) if other than the Corporate Trust Office of
the Trustee, the place or places where the
principal of and any premium and interest
on Securities of the series shall be
payable or where Securities of a series
may be surrendered for registration of
transfer or exchange;
(7) the period or periods within which, the
price or prices at which, the currency
or currencies, currency units or composite
currencies in which and the other terms and
conditions upon which Securities of the
series may be redeemed, in whole or in part,
at the option of the Company;
(8) the obligation, if any, of the Company to
redeem or purchase Securities of the series
pursuant to any sinking fund or analogous
provisions or at the option of a Holder
thereof and the period or periods (or the
methods of determination of such a period
or periods) within which, the price or
prices at which and the other terms and
conditions upon which Securities of the
series shall be redeemed or purchased, in
whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000
and any integral multiple thereof, the
denominations in which Securities of the
series shall be issuable;
(10) the currency, currencies, currency units
or composite currencies in which the
Securities of the series will be issued
and/or in which payment of the principal of
and any premium and interest on any
Securities of the series shall be payable if
other than the currency of the United States
of America and the manner of determining the
equivalent thereof in the currency of the
United States of America for purposes of the
definition of "Outstanding" in Section 101;
(11) if the amount of payments of principal of
or any premium or interest on any Securities
of the series may be determined with
-21-
reference to an index, formula or other
method, the index, formula or other method
by which such amounts shall be determined;
(12) if the amount Outstanding of an indexed
security for purposes of the definition of
"Outstanding" is to be other than the
principal face amount at original issuance,
the method of determination of such amount;
(13) if the principal of or any premium or
interest on any Securities of the series is
to be payable, at the election of the
Company or a Holder thereof, in one or more
currencies, currency units or composite
currencies other than that or those in which
the Securities are stated to be payable, the
currency, currencies, currency units or
composite currencies in which payment of the
principal of and any premium and interest on
Securities of such series as to which such
election is made shall be payable, and the
periods within which and the other terms and
conditions upon which such election is to be
made;
(14) 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 502
or the method by which such portion shall be
determined;
(15) if either or both of Section 1302 or 1303
does not apply to the Securities of any
series;
(16) whether the Securities of the series
shall be issued in whole or in part in the
form of one or more Book-Entry Securities
and, in such case, the Depositary with
respect to such Book-Entry Security or
Securities and the circumstances under which
any Book-Entry Security may be registered
for transfer or exchange, or authenticated
and delivered, in the name of a Person other
than such Depositary or its nominee, if
other than as set forth in Section 305;
(17) the rights, if any, of a Holder to renew or
extend the maturity of the Securities of the
series;
(18) the obligation, if any, of the Company to
permit the conversion or exchange of the
Securities of the series into the Company's
common stock, preferred stock or other
securities, and the terms
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and conditions upon which such conversion
or exchange may be effected (including,
without limitation, the initial conversion
price or rate, the conversion period, the
conversion agent, any adjustment of the
applicable conversion price or rate and
any requirements relative to the
reservation or such shares or securities
for purposes of such conversion;
(19) the terms, if any, pursuant to which the
Securities of the series will be made
subordinate in right of payment to senior
indebtedness of the Company, and the terms
of such subordination;
(20) any additional, modified or different
covenants or Events of Default applicable to
one or more particular series of Securities;
(21) whether the Securities of a series will be
issued as part of units consisting of
Securities and other securities of the
Company or another issuer; and
(21) any other terms of the series (which
terms shall not be inconsistent with the
provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
in or pursuant to the Board Resolution referred to above and (subject to
Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent
of the Holders, for issuances of additional Securities of such series.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the series.
Section 302. DENOMINATIONS.
The Securities of each series shall be issuable in
registered form without coupons in such denominations as shall be specified
as contemplated by Section 301. In the absence of any such provisions 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.
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Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its Chief Executive Officer, its President, its
Chief Financial Officer or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. 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 at any time the proper officers of the Company 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
or make available for delivery such Securities; PROVIDED, HOWEVER, that in
the case of Securities of a series that are not to be originally issued at
one time, the Trustee shall authenticate and deliver or make available for
delivery such Securities from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of oral
or electronic instructions from the Company or its duly authorized agents,
promptly confirmed in writing) acceptable to the Trustee as may be specified
by or pursuant to a Company Order delivered to the Trustee prior to the time
of the first authentication of Securities of such series. If the form or
forms or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, 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 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form or forms of such Securities have
been established by or pursuant to Board Resolution
as permitted by Section 201, that such form or forms
have been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been, or
in the case of Securities of a series that are not to
be originally issued at one time, will be established
by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been, or in the
case of Securities of a series that are not to be
originally issued at one time, will be established in
conformity with the provisions of this Indenture,
subject, in the case of Securities of a series
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that are not to be originally issued at one time, to
any conditions specified in such Opinion of Counsel;
and
(c) 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, fraudulent transfer,
reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights and to general equity principles;
PROVIDED, that such Opinion of Counsel need express
no opinion as to whether a court in the United
States would render a money judgment in currency
other than that of the United States.
If such form or forms or terms have been so established, the Trustee shall
not be required to authenticate such 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 the Trustee determines would expose it to personal liability.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the time of authentication of each Security of such
series if such documents, with appropriate modifications to cover such future
issuances, are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that
the Securities of a series are to be issued in whole or in part in the form
of one or more Book-Entry Securities, then the Company shall execute and the
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver or make available for
delivery one or more Securities in such form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount of
the Outstanding Securities of such series to be represented by such
Book-Entry Security or Securities, (ii) shall be registered in the name of
the Depositary for such Book-Entry Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary's instruction and (iv) shall bear the legend
set forth in Section 204.
Unless otherwise established pursuant to Section 301, each
Depositary designated pursuant to Section 301 for a Book-Entry Security must,
at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities Exchange Act
of 1934 and any other applicable statute or regulation. The Trustee shall
have no
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responsibility to determine if the Depositary is so registered. Each
Depositary shall enter into an agreement with the Trustee governing the
respective duties and rights of such Depositary and the Trustee with regard
to Book-Entry Securities.
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 the Trustee by manual signature of an
authorized officer thereof, and 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 309, for all purposes
of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver or make available for delivery, 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 executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities of
such series the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place
of Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver or make
available for delivery in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount and tenor. Until so exchanged the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
Section 305. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency of the Company
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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.
Notwithstanding anything herein to the contrary, there
shall be only one Security Register with respect to 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 that series, the Company shall execute, and the Trustee shall
authenticate and deliver or make available for delivery, 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.
At the option of the Holder, Securities of any series may
be exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver or make available for
delivery, 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, the Security
Registrar or the Trustee) be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or his
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 304, 906 or 1107 not
involving any transfer.
The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing of
a notice of redemption of Securities of that series selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or
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(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, any Book-Entry Security
shall be exchangeable pursuant to this Section 305 for Securities registered
in the names of Persons other than the Depositary for such Security or its
nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Book-Entry Security or if at any
time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended and the Company does not appoint
a successor Depositary within 90 days after receipt by it of such notice or
after it becomes aware of such cessation, (ii) the Company executes and
delivers to the Trustee a Company Order that such Book-Entry Security shall
be so exchangeable or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Securities. Any Book-Entry Security that
is exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as such Depositary shall direct.
Notwithstanding any other provision in this Indenture,
unless and until it is exchanged in whole or in part for Securities that are
not in the form of a Book-Entry Security, a Book-Entry Security may not be
transferred or exchanged except as a whole by the Depositary with respect to
such Book-Entry Security to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary.
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 in a Book-Entry Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall authenticate and deliver or
make available for delivery in exchange therefor a new Security of the same
series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
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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 an
original additional contractual 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 that series duly
issued hereunder.
The provisions of this Section 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 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency maintained for such
purpose pursuant to Section 1002; PROVIDED, HOWEVER, that at the option of
the Company, interest on Securities of any series that bear interest may be
paid (i) by check mailed to the address of the Person entitled thereto as it
shall appear on the Security Register or (ii) by wire transfer of immediately
available federal funds to an account maintained by the Person entitled
thereto as specified in the Security Register; PROVIDED, that such Person
shall have given the Trustee written wire instructions at least five Business
Days prior to the applicable Interest Payment Date.
Any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") 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 (1) or (2) below:
(1) The Company may elect to make payment
of any Defaulted Interest to the Persons in
whose names the Securities of such series
(or their respective Predecessor Securities)
are registered at the close of business on a
Special Record Date for the payment of such
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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
to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest
as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which
shall be not more than 15 days and not less
than 10 days prior to the date of the
proposed payment and not less than 10 days
after the receipt by the Trustee of the
notice of the proposed payment. The Trustee
shall promptly notify the Company of such
Special Record Date and, in the name and at
the expense of the Company, shall cause
notice of the proposed payment of such
Defaulted Interest and the Special Record
Date therefor to be mailed, first-class
postage prepaid, to each Holder of
Securities of such series at his address as
it appears in the Security Register, not
less than 10 days prior to such Special
Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special
Record Date therefor having been 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 (2).
(2) 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.
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.
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Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of
and any premium and (subject to Section 307) any interest on such Security
and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Section 309. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Securities so delivered and any Securities
surrendered directly to the Trustee for any such purpose shall be promptly
canceled by the Trustee and such cancellation shall be noted conspicuously on
each such Security. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
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 or after 90 days, if not in receipt of such Company Order, shall be
disposed of in accordance with the Trustee's customary procedures.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section
301 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.
Section 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; PROVIDED, that
any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or
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omission of such CUSIP numbers. The Company will promptly notify the Trustee
of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of any series (except as to any
surviving rights of registration of transfer, exchange or replacement of such
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore
authenticated and delivered (other
than (i) such Securities which have
been destroyed, lost or stolen and
which have been replaced or paid as
provided in Section 306 and (ii)
such Securities 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 1003)
have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for
cancellation
(i) have become due and
payable, or
(ii) will become due and payable
at their Stated Maturity
within one year, or
(iii) 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
(B)(i), (ii) or (iii)
above, has deposited or
caused to be deposited
with the Trustee as trust
funds in trust for the
purpose an amount in the
currency or currencies or
currency
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unit or units in which such
Securities are payable
sufficient to pay and
discharge the entire
indebtedness on such
Securities not
theretofore delivered to
the Trustee for
cancellation, for
principal and any premium
and interest to the date
of such deposit (in the
case of Securities which
have become due and
payable) or to the Stated
Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid
all other sums payable hereunder by
the Company; and
(3) the Company has delivered to the
Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all
conditions precedent herein provided for
relating to the satisfaction and discharge
of this Indenture with respect to such
Securities have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607
and to any Authenticating Agent under Section 615 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six
and the last paragraph of Section 1003 shall survive.
Section 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited with
the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
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
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governmental body, unless it is inapplicable to a particular series or is
specifically deleted or modified in the Board Resolution (or action taken
pursuant thereto), Officers' Certificate or supplemental indenture under
which such series of Securities is issued or has been modified in an
indenture supplemental hereto):
(1) default in the payment of any interest
upon any Security of that series when
it becomes due and payable, and
continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of
(or premium, if any, on) any Security of
that series at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of a
Security of that series; or
(4) default in the performance, or breach, of
any covenant or warranty of the Company in
this Indenture with respect to Securities
of that series (other than a covenant or
warranty a default in whose performance or
whose breach is elsewhere in this Section
specifically dealt with), and continuance
of such default or breach for a period of
90 days after there has been given, by
registered or certified mail, to the
Company by the Trustee or to the Company
and the Trustee by the Holders of at least
25% in principal amount of the Outstanding
Securities of that series a written notice
specifying such default or breach and
requiring it to be remedied and stating that
such notice is a "Notice of Default"
hereunder; or
(5) if an event of default as defined in
any indenture or instrument under which
there may be issued, or by which there may
be evidenced, any indebtedness for borrowed
money of the Company, whether such
indebtedness now exists or shall hereafter
be created, which indebtedness shall, at the
time of such event of default, be publicly
traded, shall happen and shall result in
such indebtedness in an amount in excess of
$50,000,000 becoming or being declared due
and payable prior to the date on which it
would otherwise become due and payable; and
such default giving rise to the event of
default shall not have been cured by the
Company or waived by the requisite holders
of such indebtedness under the instrument
governing the indebtedness or such
acceleration shall not have been rescinded
or annulled within 10 days after there has
been given proper notice of acceleration by
the applicable trustee or the requisite
holders of such indebtedness; or
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(6) the entry by a court having jurisdiction in
the premises of (A) a decree or order for
relief in respect of the Company in an
involuntary case or proceeding under any
applicable federal or state bankruptcy,
insolvency, reorganization or other similar
law or (B) a decree or order adjudging the
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 any 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
for relief or any such other decree or
order unstayed and in effect for a period
of 60 consecutive days; or
(7) the commencement by the Company of a
voluntary case or proceeding under any
applicable federal or state bankruptcy,
insolvency, reorganization or other similar
law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or
order for relief in respect of the Company
in an involuntary case or proceeding under
any applicable federal or state bankruptcy,
insolvency, reorganization or other similar
law or to the commencement of any bankruptcy
or insolvency case or proceeding against it
or the filing by it of a petition or answer
or consent seeking reorganization or relief
under any applicable federal or state law,
or the consent by it to the filing of such
petition or to the appointment of or taking
possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator
or other similar official of the Company or
of any substantial part of its property, or
the making by it of an 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
(8) any other Event of Default provided with
respect to Securities of that series.
The Company shall provide the Trustee with written notice of
an Event of Default within five Business Days after such Event of Default has
occurred and is continuing.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
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If an Event of Default (other than an Event of Default
described in clause 6 or 7 of Section 501) 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 25% in principal amount of
the Outstanding Securities of that series may declare the principal amount
(or, if any of the Securities of that series are Original Issue Discount
Securities or indexed securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof) of all of the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or, in the case of Original Issue
Discount Securities or indexed securities, such specified 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 a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all
Securities of that series,
(B) the principal of (and premium,
if any, on) any Securities of that
series which have become due
otherwise than by such declaration
of acceleration and any interest
thereon at the rate or rates
prescribed therefor in such
Securities,
(C) to the extent that payment of
such interest is lawful, interest
upon overdue interest at the rate or
rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by
the Trustee hereunder and the
reasonable compensation, expenses,
disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to
Securities of that series, other than the
non-payment of the principal of Securities
of that series which have become due solely
by such declaration of acceleration, have
been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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If an Event of Default described in clause 6 or 7 of
Section 501 occurs, the Outstanding Securities shall ipso facto become
immediately due and payable without need of any declaration or other act on
the part of the Trustee or any Holder.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any
interest on any Security when such interest
becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any
overdue principal and premium and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as 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 an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee shall immediately proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its creditors,
the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be
authorized 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 directly 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,
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expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
No provision of this Indenture 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; PROVIDED, HOWEVER, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and may be a member of a creditors' or other similar committee.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee 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 506. 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 any premium or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company.
Section 507. 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
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receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given
written notice to the Trustee of a
continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding
Securities of that series shall have made
written request to the Trustee to institute
proceedings in respect of such Event of
Default in its own name as Trustee
hereunder;
(3) 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;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such
written request has been given to the
Trustee before or during such 60-day period
by the Holders of a majority in principal
amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders 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 rights of any
other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all Holders.
Section 508. 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 any premium and
(subject to Section 307) any interest on such Security on the Stated Maturity
or 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 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such
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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.
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Section 510. 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 306 and as otherwise provided in Section 507,
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 511. DELAY OF OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
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 512. 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
(1) such direction shall not be in conflict with
any rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not
inconsistent with such direction, and
(3) subject to the provisions of Section
601, the Trustee shall have the right to
decline to follow any such direction if the
Trustee in good faith shall, by a
Responsible Officer or Officers of the
Trustee, determine that the proceeding so
directed would involve the Trustee in
personal liability.
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Section 513. 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
(1) in the payment of the principal of or any
premium or interest on any Security of such
series, or
(2) 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,
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 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs, including counsel fees and expenses, against any such
party litigant, in the manner and to the extent provided in the Trust
Indenture Act; PROVIDED, that neither this Section nor the Trust Indenture
Act shall be deemed to authorize any court to require such an undertaking or
to make such an assessment in any suit instituted by the Company, the Trustee
or the Holders of more than 10% in aggregate 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 interest on any
Security on or after the due date expressed in such Security.
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, 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. Whether or not therein expressly so
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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 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default
hereunder with respect to Securities of any series, the Trustee shall 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 before the
giving of such notice; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest
on Securities of any series or in the payment of any sinking fund installment
with respect to Securities of such series, 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 and/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 501(4) with respect to Securities of such series no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is,
or after notice of lapse of time or both would become, an Event of Default
with respect to Securities of such series. Subject to Trust Indenture Act
Section 315(b), the Trustee shall not be deemed to have, or be required to
take, notice of any default or Event of Default (other than a default
described in paragraph (1), (2), or (3) of Section 501) except upon (a)
written notification from the Company or (b) written notification from a
Holder and, in the absence of such notice, the Trustee may conclusively
presume that there is no default or Event of Default except as aforesaid.
Section 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(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 (whether in its original or
facsimile form) 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;
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(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 Officers' Certificate;
(d) the Trustee may consult with counsel of its
selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, 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
security or indemnity against the costs, expenses and
liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee 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, if the Trustee shall
determine to make such further inquiry or
investigation, it shall be entitled to examine the
books, records and premises of the Company,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee 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 604. 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 neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
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Section 605. MAY HOLD SECURITIES AND SERVE AS TRUSTEE UNDER OTHER
INDENTURES.
The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, 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.
Subject to the provisions of Section 608, the Trustee may
become and act as trustee under other indentures under which other
securities, or certificates of interest or participation in other securities,
of the Company are outstanding in the same manner as if it were not Trustee.
Section 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed in writing with the Company.
Section 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time
such reasonable compensation as shall
be agreed in writing between the Company and
the Trustee for all services rendered by it
hereunder (which compensation shall not be
limited by any provision of law in regard to
the compensation of a trustee of an express
trust);
(2) 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, willful misconduct or bad faith;
and
(3) to indemnify each of the Trustee, or any
predecessor Trustee, for, and to hold it
harmless against, any and all loss,
liability, damage, claim or expense incurred
without negligence or willful misconduct on
its part, arising out of or in connection
with the acceptance or administration of the
trust or trusts hereunder,
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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.
The Trustee shall have a lien prior to the Securities upon
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to
funds held in trust for the benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee.
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any federal or state supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of 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.
Section 610. 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 611.
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(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 611 shall not have been delivered
to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of
such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee
and to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days
after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of
the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect
to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to
comply with Section 608 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, or
(2) the Trustee shall cease to be
eligible under Section 609 and shall fail to
resign after written request therefor by the
Company or by any such Holder, or
(3) 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 by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
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(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, by
or pursuant to a Board Resolution, 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) and shall comply
with the applicable requirements of Section 611. 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 a majority in principal amount of the Outstanding
Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of
such appointment in accordance with the applicable
requirements of Section 611, become the successor
Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall
have been so appointed by the Company or the Holders
and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such
series.
(f) The Company 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 to all Holders of Securities of such
series in the manner provided in Section 106. 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 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such
successor Trustee so appointed 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
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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 (1) shall contain such provisions as shall
be necessary or desirable to transfer and confirm to,
and to vest in each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those
series to which the appointment of such successor
Trustee relates, (2) 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
(3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts
hereunder by more than one Trustee, it being
understood that nothing herein or in such
supplemental indenture shall constitute such Trustees
co-trustees of the same trust 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; and
upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided
therein 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;
PROVIDED, HOWEVER, that to the extent that such
property and money is not held by the Trustee in
trust for the benefit of the Holders of particular
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Securities, such retiring Trustee shall transfer
and deliver to such successor Trustee such property
and money upon payment of its charges hereunder.
(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) and (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this
Article.
Section 612. 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 or banking
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or banking association succeeding
to all or substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, PROVIDED such corporation or banking
association 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 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
Section 614. INVESTMENT OF CERTAIN PAYMENTS HELD BY THE TRUSTEE.
Any amounts held by the Trustee hereunder, other than pursuant
to Article Thirteen hereof, shall be invested by the Trustee from time to time
at the written direction of the Company in such investments as may be specified
by the Company and permitted by law and under the Indenture; PROVIDED that in
investing trust funds pursuant to the terms of this Section and liquidating any
investments held in trust hereunder, the Trustee may, to the extent permitted by
law, purchase securities (including for the purposes of this paragraph
securities as to which the Trustee or a Trustee Affiliate (as defined below) is
the issuer or guarantor) from, and sell
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securities to, itself or any Trustee Affiliate and purchase securities
underwritten by, or in which a market is made by, the Trustee or a Trustee
Affiliate. For the purposes hereof, a "Trustee Affiliate" shall mean an
entity that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Trustee.
Any income or gain realized as a result of any such investment shall be
promptly distributed (in no event later than the next Business Day) to the
Company after any intended amounts have been paid to the Holders entitled
thereto, except after the occurrence and during the continuance of an Event
of Default. The Trustee shall have no liability to the Company for any loss
resulting from any investment made in accordance with this Section, and shall
bear no expense in connection with any investment pursuant to this Section.
Any such investment may be sold (without regard to maturity date) by the
Trustee whenever necessary to make any distribution required by this
Indenture. Nothing herein shall require the Trustee to invest funds held by
it pursuant to the last paragraph of Section 1003.
Section 615. APPOINTMENT OF AUTHENTICATING AGENT.
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 issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, 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 this 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 all
or substantially all the corporate agency or corporate trust business of an
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Authenticating Agent, shall continue to be an Authenticating Agent PROVIDED
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
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions 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 provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
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 or in lieu of the Trustee's certificate of
authentication, an alternative 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.
Dated:___________________
SunTrust Bank
As Trustee
By
-----------------------------------
As Authenticating Agent
By
-----------------------------------
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee (a) semi-annually, not later than each Interest Payment Date in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the applicable preceding Interest
Payment Date, and (b) 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 in similar form and content as of a date not more than 15 days prior
to the time such list is furnished; excluding from any such list names and
addresses received by the Trustee in its capacity as Security Registrar.
Section 702. 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 contained in the most recent list
furnished to the Trustee as provided in Section 701
and the names and addresses of Holders received
by the Trustee in its capacity as Security Registrar.
The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this
Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable
by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the
Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each April 30 following the
date of the first issuance of Securities hereunder
deliver to Holders a brief report,
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dated as of such April 30, which complies with the
provisions of such Section 313(a).
(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 promptly will notify the
Trustee when any Securities are listed on any stock
exchange or delisted therefrom.
Section 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; PROVIDED,
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the Person 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 substantially as
an entirety shall be a corporation organized
and validly 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) and
interest on all the Securities and the
performance of every covenant of this
Indenture on the part of the Company to be
performed or observed;
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(2) immediately after giving effect to such
transaction, no Event of Default, and
no event which, after notice or lapse of
time or both, would become an Event of
Default, shall have occurred and be
continuing; and
(3) the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of
Counsel, each 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.
This Section shall not apply to any merger or consolidation
in which the Company is the surviving corporation, provided that, immediately
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
Section 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person 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 Person had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
Section 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 601 and
603, shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer
or lease, and any such assumption, complies with the provisions of this
Article before the Trustee shall execute any supplemental indenture required
pursuant to this Article.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person
to the Company and the assumption by any
such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for
the benefit of the Holders of all or any
series of Securities (and if such covenants
are to be for the benefit of less than all
series of Securities, stating that such
covenants are expressly being included
solely for the benefit of such series) or to
surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with
respect to all or any series of Securities;
or
(4) 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, or to permit or facilitate the
issuance of Securities in uncertificated
form or in the form of Book-Entry
Securities; or
(5) to add to, change or eliminate any of
the provisions of this Indenture in respect
of one or more series of Securities,
PROVIDED that any such addition, change or
elimination (i) shall neither (A) apply to
any Security of any series created prior to
the execution of such supplemental indenture
and entitled to the benefit of such
provision nor (B) modify the rights of the
Holder of any such Security with respect to
such provision or (ii) shall become
effective only when there is no such
Security Outstanding; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities
of any series as permitted by Sections 201
and 301; or
(8) 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
611(b); or
(9) if allowed, without penalty under
applicable laws and regulations, to permit
payment in the United States (including any
of the States thereof and the District of
Columbia), its territories, its possessions
and other areas subject to its jurisdiction
of principal, premium, if any, or interest,
if any, on Securities in bearer form or
coupons, if any; or
(10) to cure any ambiguity, to correct or
supplement any provision herein which may be
defective or inconsistent with any other
provision herein or to make any other
provisions with respect to matters or
questions arising under this Indenture,
PROVIDED that such action pursuant to this
clause (10), other than with respect to a
defective provision, shall not adversely
affect the interests of the Holders of
Securities of any series in any material
respect; or
(11) to make any other change that does not
adversely affect the rights of any Holder.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series adversely
affected by such supplemental indenture, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the
principal of, or any installment of
principal of or premium or interest on, any
Security, or reduce the principal amount
thereof or the rate of interest thereon or
any premium payable upon the redemption
thereof, or reduce the
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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 502, or change any
Place of Payment where, or the coin or
currency in which, any Security or any
premium or interest thereon is payable,
or impair the right to institute suit for
the enforcement of any such payment on or
after the Stated Maturity thereof (or, in
the case of redemption, on or after the
Redemption Date), or adversely affect the
right of the Holder of any Security to
require the Company to repurchase such
Securities, or
(2) 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 whose Holders
is required for any waiver (of compliance
with certain provisions of this Indenture or
certain defaults hereunder and their
consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this
Section, Section 513 or Section 1007, except
to increase any percentage set forth in such
Sections or to provide that certain other
provisions of this Indenture cannot be
modified or waived without the consent of
the Holder of each Outstanding Security
affected thereby; PROVIDED, HOWEVER, that
this clause shall not be deemed to require
the consent of any Holder with respect to
changes in the references to "the Trustee"
and concomitant changes in this Section and
Section 1007, or the deletion of this
proviso, in accordance with the requirements
of Sections 61l(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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 903. 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
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Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) 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 904. 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 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
Section 906. 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 TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities of the series in
accordance with the terms of the Securities and this Indenture.
Section 1002. 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 that series may
be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and
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where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Trustee is hereby
initially appointed Paying Agent, and the Corporate Trust Office of the
Trustee is initially designated as the office or agency for the foregoing
purposes. 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 the 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.
Section 1003. 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 that 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 (and premium, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of 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:
(1) hold all sums held by it for the payment
of the principal of (and premium, if any) or interest on
Securities of that 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;
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(2) give the Trustee notice of any default by
the Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal (and
premium, if any) or interest on the Securities of that series;
and
(3) 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 in respect of obligations deposited with the
Trustee pursuant to Article Thirteen, 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 (unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law), or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof (unless the Company
has remitted required moneys or property to the appropriate governmental
authority under any applicable escheat or abandoned or unclaimed property
laws, or has otherwise been discharged under such laws or laws of similar
applicability, in which case such Holder shall look solely to its remedies
(if any) under such laws and not to the Company), and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in the City of
New York or
mailed to Holders entitled to such notice, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 1004. 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
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statutory) and franchises; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Company.
Section 1005. RESTRICTIONS ON SECURED DEBT.
In the event the Company or any Domestic Subsidiary incurs,
issues, assumes or guarantees any indebtedness for borrowed money represented
by notes, bonds, debentures or other similar evidences of indebtedness,
secured by a mortgage, pledge or other lien on any Principal Domestic
Property or on any shares of stock or debt of any Domestic Subsidiary, the
Company will secure, or cause such Domestic Subsidiary to secure, the
Securities equally and ratably with, or prior to, that indebtedness, so long
as that indebtedness is to be secured, unless after giving effect to it the
aggregate amount of all secured indebtedness, together with all Attributable
Debt in respect of sale and leaseback transactions involving Principal
Domestic Properties, would not exceed 15% of Consolidated Net Assets. This
restriction will not apply to, and there shall be excluded in computing
secured indebtedness for the purpose of this restriction, indebtedness
secured by:
(a) mortgages on property of, or on any shares of stock or debt
of, any corporation existing at the time that corporation
becomes a Domestic Subsidiary; PROVIDED that such mortgages or
liens are not incurred in anticipation of such corporation
becoming a Domestic Subsidiary;
(b) mortgages in favor of the Company or any Domestic Subsidiary;
(c) mortgages in favor of U.S. or foreign governmental bodies to
secure partial, progress, advance or other payments;
(d) mortgages on property, shares of stock or debt existing at the
time of acquisition, including acquisition through merger or
consolidation, purchase money mortgages and construction cost
mortgages existing at or incurred within 120 days of the time
of acquisition;
(e) mortgages existing on the first date on which the Security is
authenticated by the Trustee;
(f) mortgages incurred in connection with pollution control,
industrial revenue or similar financings; and
(g) any extension, renewal or replacement of any debt secured by
any mortgage referred to in the foregoing list, inclusive;
PROVIDED that the principal amount of debt secured by such
mortgage shall not be increased.
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Section 1006. RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS.
Neither the Company nor any Domestic Subsidiary may enter
into any sale and leaseback transaction involving any Principal Domestic
Property, the acquisition or completion of construction and commencement of
full operation of which has occurred more than 120 days prior thereto, unless:
(a) the Company or the Domestic Subsidiary could incur a mortgage
on the property under the restrictions described above under
Section 1005 in an amount equal to the Attributable Debt with
respect to the sale and leaseback transaction without equally
and ratably securing the Securities; or
(b) the Company, within 120 days after the sale or transfer by the
Company or any Domestic Subsidiary, applies to the purchase of
other property that constitutes a Principal Domestic Property
or the retirement of the Company's or any Domestic
Subsidiary's funded debt, which is defined as indebtedness for
borrowed money having a maturity of, or by its terms
extendible or renewable for, a period of more than 12 months
after the date of determination of the amount, an amount equal
to the greater of:
(1) the net proceeds of the sale of the Principal
Domestic Property sold and leased under such
arrangement; or
(2) the Attributable Debt with respect to such sale and
leaseback transaction.
Section 1007. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any covenant or condition set forth in Sections 1004 through 1006,
inclusive, with respect to the Securities of any series if before or after
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to waive
compliance with any covenant or condition hereunder. If a record date is
fixed, the Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to waive any such compliance, whether or
not such Holders remain Holders after such record date.
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Section 1008. COMPLIANCE CERTIFICATE.
The Company will furnish to the Trustee on or before April
30 in each year a brief certificate (which need not comply with Section 102)
from the principal executive, financial or accounting officer of the Company
stating that in the course of the performance by the signer of his or her
duties as an officer of the Company he or she would normally have knowledge
of any default or non-compliance by the Company in the performance of any
covenants or conditions contained in this Indenture, stating whether or not
he or she has knowledge of any such default or non-compliance and, if so,
specifying each such default or non-compliance of which the signer has
knowledge and the nature thereof. For purposes of this Section 1008,
non-compliance or default shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable in whole or
in part before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall
be evidenced by or pursuant to a Board Resolution or Officers' Certificate.
In case of any redemption at the election of the Company of 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, 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
(a) prior to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture or (b) pursuant
to an election of the Company which is subject to a condition specified in
the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction or condition.
Section 1103. 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 such series and of a specified
tenor are to be redeemed or unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected not
more
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than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series 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 a portion of the principal amount
of any Security of such series, PROVIDED that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. If less than all of the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a
single Security), 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 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.
The provisions of the two preceding paragraphs shall not
apply with respect to any redemption affecting only a single Security,
whether such Security is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the principal amount
of the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
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 1104. 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, at his address
appearing in the Security Register.
All notices of redemption shall identify the Securities to
be redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) in the case of partial redemption of any
Securities, the principal amounts of the
particular Securities to be redeemed,
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(4) that on the Redemption Date the Redemption
Price will become due and payable upon each
such Security, or portion thereof, to be
redeemed and, if applicable, that interest
thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities
are to be surrendered for payment of the
Redemption Price, and
(6) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and
shall be irrevocable.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to the 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
1003) an amount of money in the currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series) 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 or portions thereof
which are to be redeemed on that date.
Section 1106. 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
and accrued interest) 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, unless
otherwise specified as contemplated by Section 301, 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 Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. SECURITIES REDEEMED IN PART.
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Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver or make
available for delivery 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 Book-Entry Security is so surrendered,
such new Security so issued shall be a new Book-Entry Security.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. 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
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. 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.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2) may apply as
a credit Securities of a series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for
by the terms of such series; PROVIDED that such Securities have not been
previously so credited. Such Securities 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 sinking fund payment shall be reduced accordingly.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
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Not less than 45 days prior to each sinking fund payment
date for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 and stating the basis for
such credit and that such Securities have not been previously so credited and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE.
Unless, pursuant to Section 301, provision is made that
either or both of (a) defeasance of the Securities of a series under Section
1302 as may be specified pursuant to Section 301 with respect to any
Securities, shall be applicable or (b) covenant defeasance of the Securities
of a series under Section 1303 shall not apply to the Securities of a series,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article Thirteen, with such modifications
thereto to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such
series, elect to have either Section 1302 (if applicable) or Section 1303 (if
applicable) applied to the Outstanding Securities of such series upon
compliance with the conditions set forth below in this Article Thirteen.
Section 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option to have this
Section applied to any series of Securities, the Company shall be deemed to
have been discharged from its obligations with respect to the Outstanding
Securities of such series, and the provisions of Article Thirteen hereof
shall cease to be effective, on and after the date the conditions precedent
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 which shall thereafter be deemed to be "Outstanding" only for
the purposes of the Sections of this Indenture referred to in clauses (A) and
(B) of this
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Section, 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 1304 as more fully set forth in such Section, payments
of the principal of (and premium, if any) and interest on such Securities
when such payments are due, (B) the Company's obligations with respect to
such Securities under Sections 305, 306, 1002 and 1003 and such obligations
as shall be ancillary thereto, (C) the rights, powers, trusts, duties,
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 1302 notwithstanding the
prior exercise of its option under Section 1303 with respect to the
Securities of such series. Following a defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have
this Section applied to any series of Securities, the Company shall be
released from its obligations under Sections 801, 1005 and 1006 (and any
covenant made applicable to such Securities pursuant to Section 301) and the
occurrence of an event specified in Section 501(4) (with respect to Sections
801, 1005 and 1006 or any such covenant) (and any other Event of Default
applicable to such Securities that are determined pursuant to Section 301 to
be subject to this provision) shall not be deemed to be an Event of Default
with respect to the Outstanding Securities of such series and the provisions
of Article Thirteen hereof shall cease to be effective on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and such Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any other thereof) in
connection with Sections 801, 1005 and 1006 (and any other covenant made
applicable to such Security pursuant to Section 301) and any such Events of
Default, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. 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 or such other covenant whether
directly or indirectly by reason of any reference elsewhere herein to any
such Section or such other covenant or by reason of any reference in any such
Section or such other covenant to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby. Notwithstanding the defeasance by the Company of its
obligations under Sections 801, 1005 and 1006, any successor shall be
required to assume the Company's obligations under Section 607 as a condition
to such succession.
Section 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
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The following shall be the conditions precedent to
application of either Section 1302 or Section 1303 to the Outstanding
Securities of or within such series:
(1) The Company shall irrevocably have
deposited or caused to be deposited with the
Trustee (or another trustee satisfying the
requirements of Section 609 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) money in an amount (in such currency,
currencies or currency units in which such
Securities are then specified as payable at
Maturity), or (B) U.S. Government
Obligations which through the scheduled
payment of principal and interest in respect
thereof in accordance with their terms will
provide, not later than one day before the
due date of any payment, money in an amount,
or (C) a combination thereof in an amount,
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)
and interest on the Outstanding Securities
of such series on the Maturity of such
principal, premium, if any, or interest and
(ii) any mandatory sinking fund payments
applicable to such Securities on the day on
which such payments are due and payable in
accordance with the terms of this Indenture
and such Securities. Before such a deposit
the Company may make arrangements
satisfactory to the Trustee for the
redemption of Securities at a future date or
dates in accordance with Article Eleven,
which shall be given effect in applying the
foregoing. For this purpose, "U.S.
Government Obligations" means securities
that are (x) direct obligations of the
United States of America for the payment of
which its full faith and credit is pledged
or (y) obligations of a Person controlled or
supervised by and acting as an agency or
instrumentality of the United States of
America the payment of which is
unconditionally guaranteed as a full faith
and credit obligation by the United States
of America, which, in either case, are not
callable or redeemable at the option of the
issuer thereof, and shall also include a
depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities
Act of 1933, as amended) as custodian with
respect to any such U.S. Government
Obligation or a specific payment of
principal of or interest on any
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such U.S. Government Obligation held by
such custodian for the account of the
holder of such depositary 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 depositary receipt from any
amount received by the custodian in respect
of the U.S. Government Obligation or the
specific payment of principal of or interest
on the U.S. Government Obligation evidenced
by such depositary receipt.
(2) No Event of Default or event which with
notice or 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 (A) on the date
of such deposit or (B) insofar as
subsections 501(5) and (6) are concerned, at
any time during the period ending on the
91st day after the date of such deposit or,
if longer, ending on the day following the
expiration of the longest preference period
applicable to the Company in respect of such
deposit (it being understood that this
condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance
shall not (A) cause the Trustee for the
Securities of such series to have a
conflicting interest as defined in Section
608 or for purposes of the Trust Indenture
Act with respect to any Securities of the
Company or (B) result in the trust arising
from such deposit to constitute, unless it
is qualified as, a regulated investment
company under the Investment Company Act of
1940, as amended.
(4) Such defeasance or covenant defeasance
shall not result in a breach or violation
of or constitute a default under, this
Indenture or any other material agreement
or instrument to which the Company is a
party or by which it is bound.
(5) In the case of an election under
Section 1302, 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
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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.
(6) In the case of an election under
Section 1303, 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.
(7) 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 301.
(8) The Company shall have delivered to the
Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all
conditions precedent provided for relating
to either the defeasance under Section 1302
or the covenant defeasance under Section
1303 (as the case may be) have been complied
with.
Section 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee
(collectively, for purposes of this Section 1305, the "Trustee") pursuant to
Section 1304 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, but such money need not be segregated
from other funds except to the extent required by law. Money so held in trust
shall not be subject to the provisions of Article Thirteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 1304 or the principal
and interest received in respect thereof.
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Anything herein to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 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.
Section 1306. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 1305 by reason of any order or judgment or
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under the
Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Thirteen until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 1305; provided, however, that if the Company makes any payment
of principal of (and premium, if any) or interest on any such Security
following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or the Paying Agent.
Section 1307. QUALIFYING TRUSTEE.
Any trustee appointed pursuant to Section 1304 for the
purpose of holding trust funds deposited pursuant to that Section shall be
appointed under an agreement in form acceptable to the Trustee and shall
provide to the Trustee a certificate of such trustee, upon which certificate
the Trustee shall be entitled to conclusively rely, that all conditions
precedent provided for herein to the related defeasance or covenant
defeasance have been complied with. In no event shall the Trustee be liable
for any acts or omissions of said trustee.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
Section 1401. EXEMPTION FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer, director, or employee, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations of the Company,
and that no such
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personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers, directors, or employees, as such,
of the Company or of any successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or by reason of
the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, stockholder, officer, director, or employee, as such, because
of the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or in
any of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of such Securities.
*****
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original but
all such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
Sabre Holdings Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President,
Chief Financial Xxxxxxx xxx
Xxxxxxxxx
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XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
On the ____ day of August, 2001, before me personally came
Xxxxxxx X. Xxxxxxx, to me known, who, being by me duly sworn, did depose and
say that he is the Executive Vice President, Chief Financial Officer and
Treasurer of
Sabre Holdings Corporation, one, of the companies described in
and which executed the foregoing instrument; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority of the Board of Directors of said
corporation.
-----------------------------
Notary Public
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XXXXXXXX XXXX
By: /s/ X.X. Xxxxxxxxx
-------------------------------------
Name: X.X. Xxxxxxxxx
Title: Vice President
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STATE OF [___________] )
)
COUNTY OF [_________] )
On ____________, 2001, before me, ______________________,
Notary Public, personally appeared ______________, personally known to me to
be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized
capacity and that by his/her signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------
Notary Public
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