Exhibit 4(a)
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SEARS XXXXXXX ACCEPTANCE CORP.
AND
TRUSTEE
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INDENTURE
DATED AS OF
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SEARS XXXXXXX ACCEPTANCE CORP.
INDENTURE
DATED AS OF
TABLE OF CONTENTS*
PAGE
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Parties................................................................... 1
Recitals.................................................................. 1
ARTICLE I
Definitions of Certain Terms
Section 1.1. Definitions............................................... I-1
Affiliate................................................ I-1
Authenticating Agent..................................... I-1
Board.................................................... I-1
Business Day............................................. I-1
Certified Resolution..................................... I-1
Commission............................................... I-1
Company.................................................. I-1
Currency................................................. I-1
Defaulted Interest....................................... I-1
Depository............................................... I-1
Dollar................................................... I-2
ECU...................................................... I-2
Eligible Obligations..................................... I-2
European Communities..................................... I-2
Fixed Charge Coverage and Ownership Agreement............ I-2
Fixed Charge Coverage Ratio.............................. I-2
Foreign Currency......................................... I-2
Global Security.......................................... I-2
Holder................................................... I-2
Indenture................................................ I-3
Interest................................................. I-3
Market Exchange Rate..................................... I-3
Maturity................................................. I-3
[New York Location....................................... I-3]
Officers' Certificate.................................... I-3
Opinion of Counsel....................................... I-4
Original Issue Discount Security......................... I-4
Outstanding.............................................. I-4
Person................................................... I-4
Redemption Date.......................................... I-4
Redemption Price......................................... I-4
Regular Record Date...................................... I-4
Responsible Officer...................................... I-5
Sears.................................................... I-5
Securities............................................... I-5
Security Register........................................ I-5
Special Record Date...................................... I-5
Stated Maturity.......................................... I-5
Subsidiary; Voting Stock................................. I-5
Trustee.................................................. I-5
U.S. Government Obligations.............................. I-6
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*This table of contents shall not, for any purpose, be deemed to be a part of
the Indenture.
PAGE
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Section 1.2. Trust Indenture Act definitions controlling............. I-6
ARTICLE II
The Securities
Section 2.1. Amount Unlimited; Issuable in Series; Forms Generally;
Form of Trustee's Certificate of Authentication........ II-1
Section 2.2. Denominations........................................... II-3
Section 2.3. Execution, Authentication, Delivery and Dating.......... II-3
Section 2.4. Temporary Securities.................................... II-4
Section 2.5. Registration, Registration of Transfer and Exchange..... II-4
Section 2.6. Mutilated, Destroyed, Lost and Stolen Securities........ II-5
Section 2.7. Payment of Interest; Interest Rights Preserved.......... II-5
Section 2.8. Persons Deemed Owners................................... II-6
Section 2.9. Cancellation............................................ II-7
Section 2.10. Securities Issuable as a Global Security................ II-7
Section 2.11. Currency of Payments in Respect of Securities........... II-7
Section 2.12. Availability of Currency of Payment in Respect of
Securities............................................. II-8
ARTICLE III
Covenants of the Company
Section 3.1. Payment of principal and interest....................... III-1
Section 3.2. Maintenance of office or agency for notices and demands. III-1
Section 3.3. File certain reports and information with the Trustee
and the Securities and Exchange Commission............. III-1
Transmit to Holders summaries of certain documents filed
with the Trustee....................................... III-2
Furnish list of Holders to the Trustee.................. III-2
Section 3.4. File statement by officers annually with the Trustee.... III-2
Section 3.5. Duties of paying agent.................................. III-2
Section 3.6. Certain restrictions.................................... III-3
ARTICLE IV
Redemption of Securities
Section 4.1. Applicability of Article................................ IV-1
Section 4.2. Election to Redeem; Notice to Trustee................... IV-1
Section 4.3. Selection by Trustee of Securities to Be Redeemed....... IV-1
Section 4.4. Notice of Redemption.................................... IV-1
Section 4.5. Deposit of Redemption Price............................. IV-2
Section 4.6. Securities Payable on Redemption Date................... IV-2
Section 4.7. Securities Redeemed in Part............................. IV-2
ARTICLE V
Sinking Funds
Section 5.1. Applicability of Article................................ V-1
Section 5.2. Satisfaction of Sinking Fund Payments with Securities... V-1
Section 5.3. Redemption of Securities for Sinking Fund............... V-1
ARTICLE VI
Remedies Upon Default
Section 6.1. Defaults defined--acceleration of maturity upon
default--waiver of default............................. VI-1
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Section 6.2. Covenant of Company to pay to Trustee whole amount due
on default in payment of principal or interest-
Trustee may recover judgment for whole amount due--
application of moneys received by the Trustee........ VI-2
Section 6.3. Trustee may enforce rights of action without
possession of Securities............................. VI-4
Section 6.4. Delays or omissions not to impair any rights or powers
accruing upon default................................ VI-4
Section 6.5. In event of default Trustee may protect and enforce
its rights by appropriate proceedings--holders of a
majority in principal amount of Securities of a
particular series may waive default.................. VI-4
Section 6.6. Holders of a majority in principal amount of
Securities of a particular series may direct exercise
of remedies.......................................... VI-5
Section 6.7. Limitation on suits by Holders........................ VI-5
Section 6.8. No Securities owned or held by or for the account of
the Company to be deemed outstanding for purpose of
payment or distribution.............................. VI-5
Section 6.9. Company and Trustee restored to former position on
discontinuance or abandonment of proceedings......... VI-6
ARTICLE VII
Concerning the Holders
Section 7.1. Evidence of action by Holders......................... VII-1
Section 7.2. Proof of execution of instruments and holding of
Securities........................................... VII-1
Section 7.3. Who may be deemed owners of Securities................ VII-1
Section 7.4. Securities owned by Company or its affiliates
disregarded for certain purposes..................... VII-2
Section 7.5. Action by Holders binds future Holders................ VII-2
ARTICLE VIII
Immunity of Incorporators, Shareholders,
Officers and Directors
Section 8.1. No recourse against incorporators or others........... VIII-1
ARTICLE IX
Merger, Consolidation or Sale
Section 9.1. Merger, consolidation, sale or conveyance of property
not prohibited except under certain conditions--
execution of supplemental indenture.................. IX-1
Section 9.2. Rights and duties of successor corporation............ IX-1
Issuance of Securities by successor corporation....... IX-1
Section 9.3. Opinion of Counsel to Trustee......................... IX-1
ARTICLE X
Concerning the Trustee
Section 10.1. Acceptance of Trust................................... X-1
Trustee not relieved from liability for negligence or
misconduct........................................... X-1
Trustee not responsible for validity or execution of
Indenture or of Securities or for recitals in
Indenture or Securities.............................. X-1
Trustee may rely upon documents believed genuine--may
consult with counsel--may accept officers'
certificates--may require indemnity--not to be liable
for action taken in good faith....................... X-2
Prior to default and after curing of defaults Trustee
not bound to investigate unless requested by Holders
of majority in principal amount of Securities of a
series--may require indemnification.................. X-2
Trustee may execute trusts or powers directly or by
attorneys............................................ X-2
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Section 10.2. Trustee to be entitled to compensation--Trustee not to
be accountable for application of proceeds-- moneys
held by Trustee to be trust funds.................... X-2
Section 10.3. Trustee to give Holders notice of default............. X-3
Section 10.4. Trustee acquiring conflicting interest must eliminate
it or resign; Definition of conflicting interest;
Definition of certain terms.......................... X-3
Calculation of percentages of securities.............. X-6
Section 10.5. Eligibility of Trustee................................ X-7
Section 10.6. Resignation or removal of Trustee..................... X-8
Section 10.7. Acceptance by successor Trustee....................... X-8
Section 10.8. Successor to Trustee by merger or consolidation....... X-9
Section 10.9. Limitations on right of Trustee as a creditor to
obtain payment of certain claims..................... X-9
Section 10.10. Trustee to make annual report to Holders.............. X-12
Trustee to make other reports to Holders.............. X-13
Holders to whom reports to be transmitted............. X-13
Section 10.11. Preservation of information by Trustee................ X-13
Trustee to give certain information to Holders upon
application.......................................... X-13
Section 10.12. Trustee or an Authenticating Agent may hold Securities
and otherwise deal with Company .....................
X-14
Section 10.13. Trustee may comply with any rule, regulation or order
of the Securities and Exchange Commission............ X-14
Section 10.14. Authenticating Agent.................................. X-15
ARTICLE XI
Supplemental Indentures
Section 11.1. Purposes for which supplemental indentures may be
entered into without consent of Holders.............. XI-1
Section 11.2. Modification of Indenture with consent of Holders of a
majority in principal amount of Securities of any
series............................................... XI-1
Section 11.3. Effect of supplemental indentures..................... XI-2
Section 11.4. Securities may bear notation of changes............... XI-2
Section 11.5. Trustee may rely upon Opinion of Counsel.............. XI-3
Section 11.6. Instruments of further assurance...................... XI-3
ARTICLE XII
Meetings of Holders
Section 12.1. Purposes for which meetings may be called............. XII-1
Section 12.2. Manner of calling meetings............................ XII-1
Section 12.3. Call of meetings by Company or Holders................ XII-1
Section 12.4. Who may attend and vote at meetings................... XII-1
Section 12.5. Regulations may be made by Trustee--conduct of the
meeting--voting rights--adjournment.................. XII-2
Section 12.6. Manner of voting at meetings and record to be kept.... XII-2
Section 12.7. Exercise of rights of Trustee or Holders may not be
hindered or delayed by call of meeting of Holders.... XII-3
ARTICLE XIII
Satisfaction and Discharge of Indenture
or Certain Obligations
Section 13.1. Satisfaction and discharge of Indenture............... XIII-1
Section 13.2. Deposits for payment or redemption of Securities to be
held in trust........................................ XIII-1
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Section 13.3. Repayment of moneys held by Trustee; Repayment of
moneys held by paying agent........................... XIII-2
Section 13.4. Defeasance of Securities of any series................. XIII-2
Section 13.5. Application of Trust Money............................. XIII-3
ARTICLE XIV
Miscellaneous Provisions
Section 14.1. Rights under Indenture limited to the parties and
Holders of Securities................................. XIV-1
Section 14.2. Certificate of independent accountants conclusive...... XIV-1
Section 14.3. Remaining provisions not affected by invalidity of any
other provisions--required provisions of Trust
Indenture Act of 1939, as amended, to control......... XIV-1
Section 14.4. Company released from Indenture requirements if
entitled to have Indenture cancelled.................. XIV-1
Section 14.5. Date of execution...................................... XIV-1
Section 14.6. Officers' certificates and Opinions of Counsel to be
furnished Trustee..................................... XIV-1
Section 14.7. Payments and deposits due other than on a Business Day. XIV-2
Section 14.8. Presentation of notices and demands.................... XIV-2
Section 14.9. Successors and assigns bound by Indenture.............. XIV-2
Section 14.10. Descriptive headings for convenience only.............. XIV-2
Section 14.11. Indenture may be executed in counterparts.............. XIV-2
Section 14.12. Controlling law........................................ XIV-2
Testimonium............................................................ XIV-3
Signatures and Seals................................................... XIV-3
Acknowledgments........................................................ XIV-4
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SEARS XXXXXXX ACCEPTANCE CORP.
RECONCILIATION AND TIE BETWEEN INDENTURE
DATED AS OF MAY 15, 1995
AND
TRUST INDENTURE ACT OF 1939, AS AMENDED
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1) 10.5
(a)(2) 10.5
(a)(3) Not applicable
(a)(4) Not applicable
(a)(5) 10.5
(b) 10.4, 10.5
(c) Not applicable
311(a) 10.9 (a), (c)
(b) 10.9 (b)
(c) Not applicable
312(a) 3.3 (d), 10.11
(b) 10.11
(c) 10.11
313(a) 10.10 (a)
(b)(1) Not applicable
(b)(2) 10.10 (b)
(c) 10.10 (c)
(d) 10.10 (c)
314(a)(1) 3.3 (a)
(a)(2) 3.3 (b)
(a)(3) 3.3 (c)
(a)(4) 3.4
(b) Not applicable
(c) 14.6
(d) Not applicable
(e) 14.6
(f) Not required
315(a)(1) 10.1 (a), (b)
(a)(2) 10.1 (a), (b), (d)
(b) 10.3
(c) 10.1 (a)
(d) 10.1 (a), (b)
(e) 6.7
316(a)(1A) 6.6
(a)(1B) 6.5
(a)(2) Not required
(b) 6.7
(c) 7.1
317(a)(1) 6.2
(a)(2) 6.2
(b) 3.5
318(a) 14.3
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
vi
INDENTURE, dated as of the day of , between Sears Xxxxxxx
Acceptance Corp. (hereinafter called the "Company"), a corporation organized
and existing under the laws of the State of Delaware, and
(hereinafter called the "Trustee"), a organized and existing under
the laws of , as Trustee:
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to
be issued in one or more series as in this Indenture provided.
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 covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE I
Definitions of Certain Terms
Section 1.1. Unless the context otherwise requires, the terms defined in
this Article I shall for all purposes of this Indenture and of any indenture
supplemental hereto have the meaning herein specified, the following
definitions to be equally applicable to both the singular and plural forms of
any of the terms herein defined:
Affiliate
An "Affiliate" of a specified Person shall mean another Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such first Person.
Authenticating Agent
The term "Authenticating Agent" shall mean any Authenticating Agent
appointed by the Trustee pursuant to Section 10.14.
Board
The term "Board" or "Board of Directors" shall mean the Board of Directors
of the Company or the Executive Committee of such Board.
Business Day
The term "Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a legal holiday for banking institutions in any of the
City of Wilmington, the City of Chicago, The City of New York or the city in
which the principal corporate trust office of the Trustee is located.
Certified Resolution
The term "Certified Resolution" shall mean 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.
Commission
The term "Commission" shall mean the Securities and Exchange Commission.
Company
The term "Company" shall mean Sears Xxxxxxx Acceptance Corp. and, subject to
the provisions of Article IX, shall also include its successors and assigns.
Currency
The term "Currency" shall mean Dollars or Foreign Currency.
Defaulted Interest
The term "Defaulted Interest" shall have the meaning specified in Section
2.7.
Depository
The term "Depository" shall mean, with respect to Securities of any series
for which the Company shall determine that such Securities will be issued in
whole or in part as one or
I-1
more Global Securities, The Depository Trust Company, New York, New York,
another clearing agency or any successor registered under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to either
Section 2.1 or 2.10.
Dollar
The term "Dollar" shall mean the currency issued by the government of the
United States.
ECU
The term "ECU" shall mean the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
Eligible Obligations
The term "Eligible Obligations" shall mean obligations as a result of the
deposit of which (along with the simultaneous deposit, if any, of money or
U.S. Government Obligations or both) the relevant series of Securities will be
rated in the highest generic long term debt rating category assigned by one or
more nationally recognized rating agencies to debt with respect to which the
issuer thereof has been released from its obligations to the same extent that
the Company has been released from its obligations under this Indenture
pursuant to Section 13.4 hereof.
European Communities
The term "European Communities" shall mean the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy
Community.
Fixed Charge Coverage and Ownership Agreement
The term "Fixed Charge Coverage and Ownership Agreement" shall mean the
letter agreement between the Company and Sears dated May 15, 1995.
Fixed Charge Coverage Ratio
The term "Fixed Charge Coverage Ratio" shall mean, for any period, the
Company's ratio of earnings to fixed charges, determined for such period in
accordance with Item 503(d) of Regulation S-K promulgated by the Commission,
as in effect on the date hereof.
Foreign Currency
The term "Foreign Currency" shall mean either (i) a currency issued by the
government of any country other than the United States or (ii) ECU's or
another composite currency the value of which is determined by reference to
the values of the currencies of any group of countries.
Global Security
The term "Global Security" shall mean, with respect to any series of
Securities, a Security executed by the Company and authenticated and held by
the Trustee as agent for the Depository or delivered pursuant to the
Depository's instruction, all in accordance with this Indenture and pursuant
to a Company order, which (i) shall be registered in the name of the
Depository or its nominee and (ii) shall constitute, and shall be denominated
in an amount equal to the aggregate principal amount of, all or part of the
Outstanding Securities of such series.
I-2
Holder
The terms "Holder", "Holder of Securities" or other similar terms, shall
mean the person in whose name a particular Security shall be registered on the
books of the Company kept for that purpose in accordance with the terms
hereof, and the word "majority", used in connection with the terms "Holder",
"Holder of Securities", or other similar terms, shall signify the "majority in
principal amount" whether or not so expressed.
Indenture
The term "Indenture" shall mean this instrument as originally executed or,
if amended or supplemented as herein provided, as so amended or supplemented,
and shall include the terms of particular series of Securities established as
contemplated by Section 2.1.
Interest
The term "Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity.
Interest Payment Date
The term "Interest Payment Date", when used with respect to any Security,
shall mean the Stated Maturity of any installment of interest on the Security.
Market Exchange Rate
The "Market Exchange Rate" on a given date for a given foreign currency
shall mean the noon buying rate in New York City for cable transfers in such
currency as certified for customs purposes by the Federal Reserve Bank of New
York on such date; provided, however, that in the case of European Currency
Units, Market Exchange Rate shall mean the rate of exchange determined by the
Council of European Communities (or any successor thereto) as published on
such date or the most recently available date in the Official Journal of the
European Communities (or any successor publication).
Maturity
The term "Maturity", when used with respect to any Security, shall mean 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 Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
[New York Location
The Term "New York Location" shall mean the location in the Borough of
Manhattan of The City of New York at which at any particular time the Trustee
receives and redelivers securities pursuant to applicable securities exchange
rules, which location at the date of execution of this Indenture is
.]
Officers' Certificate
The term "Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President or any Vice
President and by the Vice President, Finance, Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of the Company.
I-3
Opinion of Counsel
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel (who may be counsel to the Company) acceptable to the Trustee.
Original Issue Discount Security
The term "Original Issue Discount Security" shall mean 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 6.1.
Outstanding
The term "outstanding" or "principal amount outstanding", when used with
respect to the Securities, shall not, except as otherwise provided herein,
include (i) Securities held by the Company in its treasury, or (ii) Securities
for the payment or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee, provided that if such
Securities are to be redeemed prior to the Maturity thereof, notice of such
redemption shall have been duly given or provision satisfactory to the Trustee
shall have been made for giving such notice, or (iii) Securities in lieu of or
in substitution for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.3, or (iv) Securities theretofore
cancelled by the Trustee or delivered to the Trustee for cancellation. The
term "outstanding" or "principal amount outstanding", when used with respect
to indebtedness other than the Securities, shall not include any such
indebtedness held by the Company in its treasury or for the payment or
redemption of which moneys in the necessary amount shall have been deposited
in trust or set aside and segregated in trust by the Company, provided that,
if such other indebtedness is to be redeemed prior to the maturity thereof,
any notice of such redemption required by the terms thereof shall have been
duly given or provision satisfactory to the trustee shall have been made for
giving such notice.
Person
The term "Person" shall mean an individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
Redemption Date
The term "Redemption Date", when used with respect to any Security to be
redeemed, shall mean the date fixed for such redemption by or pursuant to this
Indenture.
Redemption Price
The term "Redemption Price" shall mean the amount payable for the redemption
of any Security on the Redemption Date, and shall always include interest
accrued and unpaid to the Redemption Date, unless otherwise specifically
provided.
Regular Record Date
The term "Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series shall mean the date specified for
that purpose as contemplated by Section 2.1.
Responsible Officer
The term "Responsible Officer", when used with respect to the Trustee, shall
mean the chairman of the board of directors, the president, every vice
president (whether or not
I-4
designated by a number or a word or words added before or after the title
"vice president"), the secretary, every trust officer, every assistant
secretary or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
Sears
The term "Sears" shall mean Sears, Xxxxxxx and Co.
Securities
The term "Securities" shall mean any Securities authenticated and delivered
under this Indenture.
Security Register
The term "Security Register" shall have the meaning specified in Section
2.5.
Special Record Date
The term "Special Record Date" for the payment of any Defaulted Interest
shall mean a date fixed by the Trustee pursuant to Section 2.7.
Stated Maturity
The term "Stated Maturity", when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
Subsidiary; Voting Stock
The term "Subsidiary" shall mean any corporation of which shares of Voting
Stock entitled to elect a majority of the directors are at the time owned
directly or indirectly by the Company and its other Subsidiaries. The term
"Voting Stock" shall mean outstanding shares of stock having voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power because of default in dividends or some
other default.
Trustee
The term "Trustee" shall mean the party named as such above until a
successor becomes such pursuant hereto and thereafter shall mean or include
each party who is then a trustee hereunder, and if at any time there is more
than one such party, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series. If
Trustees with respect to different series of Securities are trustees
hereunder, nothing herein shall constitute the Trustees as co-trustees of the
same trust, and each Trustee shall be the trustee of a trust separate and
apart from any trust administered by any other Trustee with respect to a
different series of Securities.
U.S. Government Obligations
The term "U.S. Government Obligations" shall mean securities which are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
I-5
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligations or a
specific payment of interest on or principal of any such U.S. Government
Obligations held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligations or the specific payment of interest
on or principal of the U.S. Government Obligations evidenced by such
depository receipt.
Section 1.2. All terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended, or which are by reference therein defined
in the Securities Act of 1933, as amended (except as herein otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in the Trust Indenture Act of 1939, as
amended, and the Securities Act of 1933, as amended, as they were respectively
in force at the date of this Indenture.
I-6
ARTICLE II
The Securities
Section 2.1. (a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(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 2.4, 2.5, 2.6, 4.7 or 11.4);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates (which may be fixed or variable) per annum at which
the Securities of the series shall bear interest, if any, the date or dates
from which such interest shall accrue, the date or dates on which payment
of such interest shall commence, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date;
(5) if other than as set forth in Section 3.2, the place or places where
the principal of (and premium, if any, on) and interest, if any, on
Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option, or as an obligation, of the
Company;
(7) the obligation or right, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation or right;
(8) the terms, if applicable, of conversion or exchange for other
securities, at the option of the Company or the Holder, of Securities of
the series;
(9) any subordination provisions;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) 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
6.1;
(12) the terms of any warrants attached to the Securities of the series;
(13) the currency or currencies, including ECU or other composite
currencies, in which the Securities may be purchased and in which principal
of (and premium, if any) and interest, if any, on the Securities of the
series shall be payable (if other than Dollars);
II-1
(14) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(15) provisions, if any, for the defeasance of Securities of a particular
series (including provisions permitting defeasance of less than all
Securities of a particular series), which provisions may be in addition to,
in substitution for, in subtraction from, or in modification of (or any
combination of the foregoing) the provisions of Article Thirteen;
(16) whether the Securities of the series are issuable in whole or in
part as one or more Global Securities and, in such case, the identity of
the Depository for such Global Security or Securities; and
(17) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture but which may modify or delete any
such provision of this Indenture insofar as it applies to such series;
provided that no term thereof shall be modified or deleted if imposed by
operation of subsection (c) of Section 318 of the Trust Indenture Act of
1939, as amended, and provided further that any modification or deletion of
the rights, duties or immunities of the Trustee shall have been consented
to in writing by the Trustee).
If any of the foregoing terms are not available at the time such resolutions
are adopted, or such Officers' Certificate or any supplemental indenture is
executed, such resolutions, Officers' Certificate or supplemental indenture
may reference the document or documents to be created in which such terms will
be set forth prior to the issuance of such Securities.
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 such
resolution of the Board and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a resolution of the Board, a copy of an appropriate record of such action
shall be included in the Officers' Certificate setting forth the terms of the
series.
(b) The Securities of each series shall be in substantially the form as
shall be established by or pursuant to a resolution of the Board or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rules made pursuant thereto or
with any rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
(c) The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series referred to in the within-
mentioned Indenture.
,
as Trustee
By ____________________________________
Authorized Officer
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Section 2.2. The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 2.1. In the absence of any contrary 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 and
shall be payable only in Dollars.
Section 2.3. The Securities shall be executed on behalf of the Company by
any two of its Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon. 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 written order of
the Company signed by its Chairman of the Board, its Chief Executive Officer,
its President or one of its Vice Presidents for the authentication and
delivery of such Securities, and the Trustee in accordance with such order
shall authenticate and deliver such Securities. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
resolutions of the Board as permitted by Section 2.1, 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 10.1) shall be fully protected in relying upon, an Opinion
of Counsel stating,
(a) if the form and terms of such Securities have been established by or
pursuant to a resolution of the Board as permitted by Section 2.1, that
such form and terms have been established in conformity with the provisions
of this Indenture; and
(b) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and binding
obligations of the Company in accordance with their terms, subject to
insolvency, bankruptcy, reorganization and other laws relating to or
affecting the enforcement of creditors' rights or by general equity
principles.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in
good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or responsible officers shall
determine (i) that such action would expose the Trustee to liability to
existing Holders, or (ii) in the case of Securities designated pursuant to one
or more resolutions of the Board as permitted by Section 2.1, that such action
would affect the Trustees' own rights, duties or immunities under this
Indenture or otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Indenture.
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Section 2.4. Pending the preparation of definitive Securities of any series,
the Company may execute, and upon a written order of the Company signed by its
Chairman of the Board, its Chief Executive Officer, its President or one of
its Vice Presidents, the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other 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, without charge to the Holder, upon surrender of the
temporary Securities of such series at the office or agency of the Company for
that series to be maintained in accordance with the provisions of Section 3.2.
Upon surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 2.5. The Company shall keep or cause to be kept a register for each
series of Securities issued hereunder (herein called a "Security Register") at
any office or agency of the Company to be maintained in accordance with the
provisions of Section 3.2 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 Security Register shall be in written form
or capable of being converted into written form within a reasonable time.
Unless otherwise specifically designated by the Company in a written notice to
the Trustee, the Security Register shall be maintained at the principal
corporate trust office of the Trustee.
Upon surrender for registration of transfer of any Security of any series at
the office or agency for that series to be maintained in accordance with the
provisions of Section 3.2, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity and
bearing a number not contemporaneously outstanding.
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 Stated Maturity and bearing a number not
contemporaneously outstanding upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company duly executed, by the Holder
thereof or his attorney duly authorized in writing.
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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 Sections 2.4, 4.7 or 11.4, not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 4.3 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security theretofore designated for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Section 2.6. If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a Security of the same series and principal amount and
Stated Maturity 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 upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a Security of the same series and principal amount and Stated
Maturity and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a Security in substitution of such Security, pay such Security,
provided the conditions set forth in the next preceding paragraph are
satisfied.
Upon the issuance of any Security pursuant to 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 counsel fees, of the Company and the Trustee, any Authenticating
Agent, and any paying agent or Security registrar connected therewith and in
addition a further sum not exceeding two dollars for each Security so issued
in substitution.
Every 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 2.7. Each installment of interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date
shall be paid only to or upon the written order of the Person in whose name
that Security is registered at the close of business on the Regular Record
Date for such interest.
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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 are registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner: (a) 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 which shall be at least 20 days from the date of
such notice, 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; (b) 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; and (c) 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 are registered at the close of business on such
Special Record Date; or
(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.
Section 2.8. 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 upon the
Security Register as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any, on) and (subject to Section 2.7)
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.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the
Depository or its nominee, or impair, as
II-6
between the Depository and holders of beneficial interests in any Global
Security, the operation of customary practices governing the exercise of the
rights of the Depository as holder of such Global Security, including without
limitation the granting of proxies or other authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take
under this Indenture.
Section 2.9. All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
written order of the Company signed by its Chairman of the Board, its
President or one of its Vice Presidents.
Section 2.10. (a) If the Company shall establish pursuant to Section 2.1
that the Securities of a particular series are to be issued in whole or in
part as one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 2.3 and the order of the Company
delivered to the Trustee thereunder, authenticate and deliver, one or more
Global Securities which (i) shall constitute, and shall be denominated in an
amount equal to the aggregate principal amount of, all or part of the
outstanding Securities of such series, (ii) shall be registered in the name of
the Depository or its nominee, (iii) shall be held by the Trustee as agent for
the Depository or delivered pursuant to the Depository's instruction and (iv)
shall bear a legend substantially to the following effect: "Except as
otherwise provided in Section 2.10 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of the
Depository or to a successor Depository or to a nominee of such successor
Depository."
(b) Notwithstanding any other provision (other than Section 2.10(c)) of this
Section 2.10 or of Section 2.5, the Global Securities of a series may be
transferred, in whole but not in part and in the manner provided in Section
2.5, only to another nominee of the Depository for such series, or to a
successor Depository for such series selected or approved by the Company or to
a nominee of such successor Depository.
(c) If (i) the Company advises the Trustee in writing that the Depository is
no longer willing or able to discharge properly its responsibilities with
respect to any Securities of any series represented by one or more Global
Securities, and the Trustee or the Company is unable to locate a qualified
successor, or (ii) the Company, at its option, advises the Trustee in writing
that it has determined that any Securities of any series represented by one or
more Global Securities shall no longer be represented by one or more Global
Securities, then in either event the Company will execute, and the Trustee,
upon receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver, Securities of such series in
definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of such Global
Securities in exchange for such Global Securities. Upon the exchange of Global
Securities for such Securities in definitive registered form without coupons,
in authorized denominations, the Global Securities shall be cancelled by the
Trustee and the provisions of this Section 2.10 shall no longer be applicable
to such Securities. Such Securities in definitive registered form issued in
exchange for Global Securities pursuant to this Section 2.10(c) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
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SECTION 2.11. (a) Except as otherwise specified pursuant to Section 2.1,
payment of the principal of (and premium, if any) and interest on Securities
of any series will be made in Dollars.
(b) For purposes of any provision of this Indenture where the Holders of
outstanding Securities of a series may perform an act which requires that a
specified percentage of the outstanding Securities of such series perform such
act and for purposes of any decision or determination by the Trustee of
amounts due and unpaid for the principal (and premium, if any) and interest on
the outstanding Securities of such series in respect of which moneys are to be
disbursed ratably, the principal of (and premium, if any) and interest on the
outstanding Securities of such series denominated in a Foreign Currency will
be the amount in Dollars based upon the Market Exchange Rate for such Foreign
Currency on the latest date for which such rate was established on or before
the date for determining the Holders entitled to perform such act, or the date
of such decision or determination by the Trustee, as the case may be.
Section 2.12. If the principal of (and premium, if any) and interest on any
Securities is payable in a Foreign Currency and such Foreign Currency is not
available for payment due to the imposition of exchange controls or other
circumstances beyond the control of the Company, then the Company shall be
entitled to satisfy its obligations to Holders under this Indenture by making
such payment in Dollars on the basis of the Market Exchange Rate for such
Foreign Currency on the latest date for which such rate was established on or
before the date on which payment is due. Any payment made pursuant to this
Section 2.12 in Dollars where the required payment is in a Foreign Currency
shall not constitute a default under this Indenture.
II-8
ARTICLE III
Covenants of the Company
Subject to the provisions of Section 13.4, so long as Securities are
outstanding hereunder, the Company covenants for the benefit of each series of
Securities that:
Section 3.1. The Company will punctually pay the principal (premium, if any)
and interest, if any, to become due in respect of all the Securities of that
series according to the terms of the Securities of that series and this
Indenture. Such interest on Securities shall be payable without presentation
of such Securities and (subject to the provisions of Section 2.7) only to or
upon the written order of the Holders of such Securities. Except as otherwise
specified as contemplated by Section 2.1 for Securities of any series,
payments of interest shall be made either, at the option of the Company, by
check mailed to the address of the person entitled thereto as such address
shall appear on the Security Register for that series, or at any one or more
of the offices or agencies of the Company maintained in accordance with
Section 3.2.
Section 3.2. The Company will maintain in the Borough of Manhattan of The
City of New York, and may maintain in the city in which the principal
executive offices of the Company are located or the city in which the
principal corporate trust office of the Trustee is located, an office or
agency where, except as otherwise provided herein, the Securities of that
series may be presented for payment, an office or agency where the Securities
of that series may be presented for registration of transfer and for exchange
as provided in this Indenture and an office or agency where notices and
demands to or upon the Company in respect of such Securities or of this
Indenture may be served. Until otherwise designated by the Company in a
written notice to the Trustee, such office or agency in the Borough of
Manhattan of The City of New York for all of the above purposes shall be
.
Section 3.3. The Company will:
(a) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended (or copies of such
portions thereof as may be prescribed by the Commission under the
provisions of the Trust Indenture Act of 1939, as amended); or, if the
Company is not required to file with the Commission information, documents
or reports pursuant to either Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, then the Company will file with the
Trustee and will file with the Commission, in accordance with rules and
regulations prescribed by the Commission, such of the supplementary and
periodic information, documents and reports required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange as may be
prescribed in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this
Indenture as may be required by such rules and regulations, including, in
the case of annual reports, if required by such rules and regulations,
certificates or opinions of independent public accountants, conforming to
the
III-1
requirements of Section 14.6, as to compliance with conditions or
covenants, compliance with which is subject to verification by accountants;
(c) transmit to the Holders of that series of Securities, in the manner
and to the extent provided in Subdivision (c) of Section 10.10 hereof, such
summaries of any information, documents and reports required to be filed
with the Trustee pursuant to the provisions of Subdivisions (a) and (b) of
this Section 3.3 as may be required by the rules and regulations of the
Commission under the provisions of the Trust Indenture Act of 1939, as
amended; and
(d) furnish or cause to be furnished to the Trustee semi-annually not
later than each Interest Payment Date for each series of Securities,
provided that interest on such Securities is payable at least semi-
annually, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list in
such form as the Trustee may reasonably require containing all information
in the possession or control of the Company or of any paying agent, other
than the Trustee, as to the names and addresses of the Holders of such
series of Securities obtained since the date as of which the next previous
list, if any, was furnished. Any such list may be dated as of a date not
more than 15 days prior to the time such information is furnished or caused
to be furnished, and need not include information received after such date.
Section 3.4. Within 120 days after the close of each fiscal year of the
Company ending after the date hereof, the Company will file with the Trustee a
statement signed by the Chairman of the Board, the Chief Executive Officer or
its President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of the Company
(provided, that one of such signatories shall be the Company's principal
executive officer, principal financial officer or principal accounting
officer), stating that in the course of the performance by the signers of
their duties as officers of the Company they would normally obtain knowledge
of any default by the Company in the performance or fulfillment of any
covenant, agreement or condition contained in this Indenture, and stating
whether or not they have obtained knowledge of any such default, and, if so,
specifying each such default of which the signers have knowledge and the
nature thereof. For purposes of this Section 3.4, "default" shall mean any
default defined in Section 6.1 hereof, irrespective of the giving of any
specified notice and excluding any periods of grace provided for therein.
Section 3.5. The Company will cause any paying agent which it may appoint,
other than the Trustee, to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee,
(a) that it will hold all sums held by it as such agent for the payment
of the principal of and premium, if any, or interest on the Securities of
that series (whether such sums have been paid to it by the Company or by
any other obligor on such Securities) in trust for the benefit of the
Holders of such Securities or of the Trustee, as the case may be,
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on such Securities) to make any payment of the
principal (and premium, if any, on) or interest on such Securities when the
same shall be due and payable, and
(c) that in the case of a default by the Company hereunder, that it will
deliver to the Trustee any sums then held by it in respect of the
Securities.
If the Company acts as its own paying agent, it will, on or before each due
date of principal (and premium, if any) or of any installment of interest on
such Securities, set aside and segregate and hold in trust for the benefit of
the Holders of such Securities or the Trustee a sum sufficient to pay such
principal (and premium, if any) or interest and will notify the Trustee of
such action.
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Section 3.6. The Company will:
(a) maintain a Fixed Charge Coverage Ratio for any fiscal quarter of not
less than 1.10;
(b) cause Sears to continue to own and to hold all legal title to and
beneficial interest in all of the outstanding voting stock of the Company;
(c) cause Sears to observe and perform in all material respects all
covenants or agreements of Sears contained in the Fixed Charge Coverage and
Ownership Agreement; and
(d) not amend, waive, terminate or otherwise modify any provision of the
Fixed Charge Coverage and Ownership Agreement.
III-3
ARTICLE IV
Redemption of Securities
Section 4.1. Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 2.1 for Securities of any
series) in accordance with this Article.
Section 4.2. The election of the Company to redeem any Securities shall be
evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed. In the case of any redemption of Securities
which is subject to any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 4.3. If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected 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 portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof, if less than all the Securities of that series are to be redeemed on
the applicable Redemption Date) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of the Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be
redeemed.
Section 4.4. 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 state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(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.
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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.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to be duly given, whether or not the Holder receives
such notice; any failure to give such notice by mail or any defect in such
notice to the Holder of a particular Security designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
Section 4.5. On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a paying agent (or, if the Company is acting as its
own paying agent, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
Section 4.6. 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 on 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
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, registered
as such at the close of business on the relevant Regular or Special Record
Dates according to their terms and the provisions of Section 2.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 4.7. Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company to be maintained pursuant
to Section 3.2 (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 to 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 to the Holder of such Security without
service charge, a Security or Securities of the same series and Stated
Maturity 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 and bearing a number not
contemporaneously outstanding. If a Global Security is so surrendered such new
Security or Securities so issued shall be a Global Security or Global
Securities.
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ARTICLE V
Sinking Funds
Section 5.1. 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 2.1 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". Unless otherwise provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 5.2. 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 5.2. The Company (1) may deliver outstanding Securities (including
for purposes of this Clause (1) any Securities held by the Company in its
treasury) of a series (other than any previously called for redemption) and
(2) may, by written notice to the Trustee, 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; provided, however, that such Securities have not
been previously so credited. Such Securities shall be 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 5.3. 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 crediting Securities of that
series pursuant to Section 5.2 and will also deliver to the Trustee any
Securities to be delivered pursuant to Clause (1) of Section 5.2. Not less
than 30 days before each such sinking fund payment date the Trustee shall
select or cause to be selected the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 4.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 4.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 4.6 and 4.7.
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ARTICLE VI
Remedies Upon Default
Section 6.1. Subject to the provisions of Section 2.12, the following events
are hereby defined for all purposes of this Indenture with respect to
Securities of any series (except where the term is otherwise defined for
specific purposes) as "defaults":
(a) Failure to pay the principal of (and premium, if any, on) any of the
Securities of that series, when and as the same shall become due and
payable, whether at Stated Maturity thereof, by call for redemption or
otherwise; or
(b) Failure to pay any installment of interest on any of the Securities
of that series, when and as the same shall become payable as therein
expressed, and such failure shall continue for a period of 30 days (it
being understood that if the entire amount of such payment of interest is
deposited by the Company with the Trustee, or with another paying agent
duly appointed hereunder, before the expiration of such period of 30 days,
such default shall no longer be considered to be continuing under this
Indenture); or
(c) Failure to perform or observe any other of the covenants, conditions
or agreements on the part of the Company in this Indenture (other than a
covenant, condition or agreement a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of series
of Securities other than that series) or in the Securities of that series
contained, and such failure shall continue for a period of 60 days after
written notice to the Company from the Trustee or to the Company and to the
Trustee from the Holders of not less than a majority of the Securities of
that series then outstanding under this Indenture; or
(d) Except as a result of compliance with any court order to which the
Company or Sears is subject or any applicable law or any government decree,
if an event of default as defined in any mortgage, indenture or instrument,
under which there may be issued, or by which there may be secured or
evidenced, any indebtedness for borrowed money of the Company or of Sears
(including this Indenture), whether such indebtedness now exists or shall
hereafter be created, shall happen and shall result in such indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, and such acceleration shall not be
rescinded or annulled within 30 days after written notice to the Company
from the Trustee or to the Company and to the Trustee from the Holders of
not less than a majority of the Securities of that series then outstanding
under this Indenture; provided, however, that it shall not be a default
hereunder if the principal amount of indebtedness the maturity of which is
so accelerated is less than $100,000,000; provided, further, that if, prior
to a declaration of acceleration of the maturity of the Securities then
outstanding or the entry of judgment in favor of the Trustee in a suit
pursuant to Section 6.2, such default shall be remedied or cured by the
Company or Sears or waived by the holders of such indebtedness, or such
indebtedness shall be discharged, then the default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee or any of
the Holders of the Securities; or
(e) If the Company shall file a petition commencing a voluntary case
under any chapter of the Federal bankruptcy laws; or the Company shall file
a petition or answer or consent seeking reorganization, arrangement,
adjustment, or composition under any other similar applicable Federal law,
or shall consent to the filing of any such petition, answer, or consent; or
the Company shall appoint, or consent to the appointment of a
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custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial
part of its property; or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due; or
(f) If any order for relief against the Company shall have been entered
by a court having jurisdiction in the premises under any chapter of the
Federal bankruptcy laws, and such order shall have continued undischarged
or unstayed for a period of 120 days; or a decree or order by a court
having jurisdiction in the premises shall have been entered approving as
properly filed a petition seeking reorganization, arrangement, adjustment,
or composition of the Company under any other similar applicable Federal
law, and such decree or order shall have continued undischarged or unstayed
for a period of 120 days; or a decree or order of a court having
jurisdiction in the premises for the appointment of a custodian, receiver,
liquidator, trustee, assignee, sequestrator, or other similar official in
bankruptcy or insolvency of the Company or of any substantial part of its
property, or for the winding up or liquidation of its affairs, shall have
been entered, and such decree or order shall have remained in force
undischarged or unstayed for a period of 120 days; or
(g) Any other default provided with respect to Securities of that series.
If one or more defaults with respect to Securities of any series shall
happen and be continuing, then, and in each and every such case, either the
Trustee, by notice in writing to the Company, or the Holders of not less than
a majority in principal amount of the Securities of that series then
outstanding, by notice in writing to the Company and to the Trustee, may
declare due and payable, if not already due and payable, the principal amount
(or, if the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
series) of all of the Securities of that series; and upon any such declaration
all Securities of that series shall become and be immediately due and payable,
anything in this Indenture or in any of such Securities contained to the
contrary notwithstanding. This provision, however, is subject to the condition
that if, at any time after the principal (or portion thereof) of the
Securities of that series shall have been declared due and payable, and prior
to the Stated Maturity of the principal thereof, all arrears of interest upon
all such Securities (with interest so far as may be lawful on any overdue
installments of interest at the rate specified in such Securities) and the
expenses of the Trustee, its agents or attorneys shall be paid by or for the
account of the Company, and all defaults as aforesaid (other than the payment
of principal which has been so declared due and payable) shall have been made
good or secured to the satisfaction of the Trustee and provision deemed by the
Trustee to be adequate shall be made therefor, then and in every such case the
Trustee shall, upon the written request of the Holders of a majority in
principal amount of the Securities of that series then outstanding, delivered
to the Company and to the Trustee, waive such default and its consequences and
rescind or annul such declaration; but no such waiver shall extend to or
affect any subsequent default, or impair any right consequent thereon.
Notwithstanding the foregoing, to the extent the Company shall have been
relieved of any of its obligations under this Indenture with respect to
Securities of any series pursuant to Section 13.4 hereof, the failure of the
Company to perform any such obligations as to which it has been relieved shall
not constitute a default as contemplated by this Indenture.
Section 6.2. In case the Company:
(a) shall fail to pay any installment of interest on any Security of any
series when and as it shall become payable and such failure shall have
continued for a period of 30 days (it being understood that if the entire
amount of such payment of interest is
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deposited by the Company with the Trustee, or with another paying agent
duly appointed hereunder, before the expiration of such period of 30 days,
such default shall no longer be considered to be continuing under this
Indenture); or
(b) shall fail to pay the principal, or portion thereof, of (or premium,
if any, on) any Security of any series when it shall have become due and
payable, whether at the Stated Maturity thereof, by call for redemption, by
declaration as authorized by this Indenture (unless annulled pursuant to
Section 6.1), or otherwise;
then, upon demand of the Trustee, the Company shall pay to the Trustee, for
the benefit of the Holders of the Securities of that series then outstanding,
the whole amount which then shall have become due on all such Securities for
principal (or premium, if any) or interest, as the case may be, including
interest at the rate specified in the Securities of that series on overdue
principal (and premium, if any) and, so far as may be lawful, on overdue
installments of interest; and in case the Company shall fail to pay the same
forthwith upon such demand, the Trustee in its own name and as trustee of an
express trust, shall be entitled to recover judgment for the whole amount so
due and unpaid against the Company or any other obligor on the Securities of
that series. The right of the Trustee to recover such judgment shall not be
affected by the exercise of any other right, power or remedy for the
enforcement of the provisions of this Indenture.
The Trustee shall be entitled and empowered, either in its own name or as
trustee of an express trust, or as attorney-in-fact for the Holders of the
Securities of any series, or in any one or more of such capacities, to file
such proof of debt, amendment of proof of debt, claim, petition or other
document as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Securities of that series allowed in any
equity receivership, insolvency, bankruptcy, liquidation, readjustment,
reorganization or other judicial proceedings relative to the Company or any
other obligor on such Securities or their creditors, or affecting their
property. The Trustee is hereby irrevocably appointed (and the successive
respective Holders of the Securities of that series by taking and holding the
same shall be conclusively deemed to have so appointed the Trustee) the true
and lawful attorney-in-fact of the respective Holders of the Securities of
that series, with authority to make and file in the respective names of the
Holders of such Securities, or on behalf of the Holders of the Securities of
that series as a class, subject to deduction from any such claims of the
amounts of any claims filed by any of the Holders of the Securities of that
series themselves, any proof of debt, amendment of proof of debt, claim,
petition or other document in any such proceeding and to receive payment of
any sums becoming distributable on account thereof, and to execute any such
other papers and documents and to do and perform any and all such acts and
things including participating as a member of any official or unofficial
committee of creditors acting with respect to such proceeding for and on
behalf of such holders of the Securities of that series, as may be necessary
or advisable in the opinion of the Trustee in order to have the respective
claims of the Trustee and of the Holders of the Securities of that series
allowed in any such proceedings, and to receive payment of or on account of
such claims; provided, however, that nothing contained in this Indenture shall
be deemed to give the Trustee any right to accept or consent to any plan of
reorganization or otherwise by action of any character in any such proceedings
to waive or change in any way any right of any Holder.
Any moneys received by the Trustee under this Section 6.2 shall be applied
in the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Securities of
any series, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of costs and expenses of collection, and reasonable
compensation to the Trustee, its agents, attorneys and counsel, and of all
other expenses
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incurred, and all advances made, by the Trustee except as a result of its
negligence or willful misconduct;
Second: In case the principal of (and premium, if any, on) the
outstanding Securities of that series shall not have become due and be
unpaid, to the payment of interest on the Securities of that series, in the
order of the maturity of the installments of such interest, with interest,
so far as may be lawful, upon the overdue installments of interest at the
rate specified in the Securities of that series, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preferences;
Third: In case the principal of (or premium, if any, on) the outstanding
Securities of that series shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon
such Securities of that series for principal (and premium, if any) and
interest, with interest at the rate specified in the Securities of that
series on the overdue principal (and premium, if any) and, so far as may be
lawful, on the overdue installments of interest; and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid
upon such Securities, then to the payment of such principal (and premium,
if any) and interest, without preference or priority of principal over
interest, or of interest over principal or of any installment of interest
over any other installment of interest, ratably to the aggregate of such
principal and accrued and unpaid interest;
Fourth: In case the Trustee shall retain possession of any funds after
all obligations of the Company hereunder have been fully paid and
satisfied, such funds shall be paid to the Company, its successors or
assigns;
provided, however, that when interest alone is to be paid, the Trustee at its
election may waive presentation of the Securities of that series.
Section 6.3. All rights of action under this Indenture or any of the
Securities outstanding hereunder, enforceable by the Trustee, may be enforced
by the Trustee without possession of any of the Securities or the production
thereof at the trial or other proceeding relative thereto, and any such suit
or proceedings instituted by the Trustee shall be brought for the ratable
benefit of the Holders of the Securities in respect of which any judgment has
been recovered, subject to the provisions of this Indenture.
Section 6.4. No delay or omission of the Trustee or of the Holders of any
Securities to exercise any rights or powers accruing upon any default shall
impair any such right or power, or shall be construed to be a waiver of any
such default or acquiescence therein; and every power and remedy given by this
Article to the Trustee or the Holders may be exercised from time to time and
as often as may be deemed expedient by the Trustee or by the Holders.
Section 6.5. If any one or more defaults shall happen and be continuing, the
Trustee may, in its discretion, proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as the
Trustee, being advised by its counsel, shall deem most effectual to protect
and enforce any of said rights, either by suit in equity or by action at law
or by proceeding in bankruptcy or otherwise, whether for the specific
performance of any covenant or agreement contained in the Indenture or in aid
of the exercise of any power granted in the Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
Provided the Securities of any series shall not then be due and payable by
reason of a declaration pursuant to Section 6.1 hereof, the Holders of a
majority in principal amount of the Securities of that series at the time
outstanding may on behalf of the Holders of all of such Securities waive any
past default hereunder and its consequences, except a default in
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the payment of interest on or the principal of (or premium, if any, on) any of
such Securities. In the case of any such waiver, the Company, the Trustee and
the Holders of such Securities shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 6.6. The Holders of a majority in principal amount of the Securities
of any series then outstanding shall have the right, by an instrument in
writing executed and delivered to the Trustee, to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
of exercising any power or trust conferred upon the Trustee under this
Indenture; provided, however, that subject to the provisions of Section 10.1
of this Indenture, the Trustee shall have the right to decline to follow any
such direction if the Trustee being advised by counsel determines that the
action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith shall by responsible officers determine that the action or
proceeding so directed would involve the Trustee in liability.
Section 6.7. No Holder of any Security of any series shall have the right to
institute any suit, action or proceeding, in equity or at law, for the
execution of any trust or power hereof, or for the enforcement of any other
remedy under or upon this Indenture, unless such Holder previously shall have
given to the Trustee written notice of default with respect to the Securities
of that series, and unless also the Holders of a majority in principal amount
of the Securities of that series then outstanding shall have made written
request upon the Trustee and shall have afforded to it a reasonable
opportunity either to proceed to exercise the powers hereinbefore granted or
to institute such action, suit or proceeding in its own name, and shall have
offered to the Trustee security and indemnity satisfactory to it against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee shall have refused or neglected to comply with such request within a
reasonable time; it being understood and intended that no one or more Holders
of Securities of that series shall have any right in any manner whatever
hereunder or under the Securities of that series by his or their action to
enforce any right hereunder except in the manner herein provided, and that all
proceedings hereunder, at law or in equity, shall be instituted, had and
maintained in the manner herein provided and for the ratable benefit of all
Holders of such Securities. Nothing herein contained shall, however, affect or
impair the right which is absolute and unconditional, of any Holder of any
Security to institute suit to enforce the payment of the principal of (or
premium, if any, on) and interest on his Security at and after the respective
due dates expressed in such Security (including Maturity by call for
redemption, declaration (unless annulled pursuant to Section 6.1 hereof) of
the acceleration of the Maturity of such principal (or premium if any, on) or
interest, or otherwise), or the obligation of the Company, which is also
absolute and unconditional, to pay the principal of (or premium, if any, on)
and interest on each of the Securities of that series to the respective
Holders thereof at the times and places in the Securities expressed.
Anything to the contrary notwithstanding contained in this Section 6.7, the
parties to this Indenture agree and each Holder of any Security of any series
by his acceptance thereof shall be deemed to have agreed that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merit and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this paragraph shall not apply to any suit
instituted, directly or through an agent or agents, by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Securities of any series outstanding
or to any suit instituted by any
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Holder for the enforcement of the payment of the principal of (or premium, if
any, on) or interest on his Securities of that series at and after the
respective due dates of such principal (premium, if any) or interest expressed
in his Securities of that series.
Section 6.8. No Securities of any series which are known by the Trustee to
be owned or held by, for the account of or for the benefit of, the Company or
any other obligor under this Indenture or any Affiliate of the Company or of
such other obligor (other than Securities of that series pledged in good faith
which would be deemed outstanding under the provisions of Section 7.4) shall
be deemed outstanding for the purpose of any payment or distribution provided
for in this Article.
Section 6.9. If the Trustee or any Holder shall have proceeded to enforce
any right under this Indenture, and such proceedings shall have been
discontinued or abandoned because of waiver, or for any other reason, or shall
have been determined adversely to the Trustee or such Holder, then, and in any
such case, the Company and the Trustee and such Holder or Holders shall each
be restored to its former position and rights hereunder, and all rights,
remedies and powers of the Trustee and the Holders shall continue as though no
such proceedings had been taken.
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ARTICLE VII
Concerning the Holders
Section 7.1. Whenever in this Indenture it is provided that the Holders of a
specified percentage or a majority in aggregate principal amount of the
Securities of any series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking
of any other action) the fact that at the time of taking any such action the
Holders of such specified percentages have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by
Holders of Securities of that series in person or by attorney or proxy
appointed in writing, or (b) by the record of the Holders of Securities of
that series voting in favor thereof at any meeting of such Holders duly called
and held in accordance with the provisions of Article XII, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Holders. The Company or the Trustee may (and in case of any
action taken by Holders of a specified percentage or majority in aggregate
principal amount of the Securities of any series pursuant to Section 6.1 or
6.6 hereof, the Trustee shall) set a record date and time for purposes of
determining the identity of Holders of any series entitled to vote or consent
to any action, which record date shall be the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders of such series of Securities furnished to the Trustee prior to such
solicitation pursuant to Section 3.3 (d) hereof. If the Company or the Trustee
sets such a record date, only those persons who are registered Holders of such
Securities at the record date and time so fixed shall be entitled to vote or
consent with respect to such action whether or not they are Holders at the
time of such vote or consent.
Section 7.2. Subject to the provisions of Section 10.1, proof of the
execution of any instrument by a Holder of Securities of any series or his
attorney or proxy and proof of the holding by any person of any of the
Securities of that series shall be sufficient for any purpose of this
Indenture if made in the following manner:
(a) The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public, or other
officer of any jurisdiction of or within the United States of America
authorized to take acknowledgments of deeds to be recorded in such
jurisdiction, that the person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution
is by an officer of a corporation or association or a member of a
partnership on behalf of such corporation, association or partnership, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(b) The ownership of Securities of that series shall be proved by the
Security Register with respect to such Securities or by a certificate of
any duly appointed registrar thereof.
The Trustee shall not be bound to recognize any person as a Holder of
Securities of any series unless and until his authority to vote the Securities
held by him is proved in the manner in this Article VII provided.
The record of any Holders' meeting shall be proved in the manner provided in
Section 12.6.
The Trustee may require such additional proof of any matter referred to in
this Section 7.2 as it shall deem necessary.
Section 7.3. The Company, the Trustee, any Authenticating Agent, any paying
agent and any Security registrar may deem and treat the person in whose name
any Security shall be registered upon the Security Register as the absolute
owner of such Security (whether or
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not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Company or any Security
registrar) for the purpose of receiving payment of or on account of the
principal of (premium, if any, on) and interest on such Security and for all
other purposes; and neither the Company nor the Trustee nor any Authenticating
Agent nor any paying agent nor any Security registrar shall be affected by any
notice to the contrary. All such payments so made to any such registered
Holder for the time being or upon his order shall be valid and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability
for moneys payable upon any such Security.
Section 7.4. In determining whether the Holders of the requisite aggregate
principal amount of Securities of any series have concurred in any direction,
consent or waiver under this Indenture, Securities of that series which are
owned by or held by or for the account of or interest of the Company or any
other obligor upon the Securities of that series, or any Affiliate of the
Company or of any other obligor upon the Securities of that series, shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities of that series which the Trustee knows are so owned or held shall
be so disregarded. The Securities of that series so owned or held which have
been pledged in good faith may be regarded as outstanding for the purposes of
this Section 7.4 if the pledgee shall establish to the satisfaction of the
Trustee the pledgee's right to vote such Securities and that the pledgee is
not an Affiliate of the Company or of any such other obligor. In case of a
dispute as to such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
Section 7.5. Any demand, request, waiver, consent or vote of the Holder of
any Security of any series shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security, and of any Security
issued in exchange therefor or in place thereof, irrespective of whether or
not any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the majority or percentage in aggregate principal
amount of the Securities of that series specified in this Indenture in
connection with such action shall be conclusively binding upon the Company,
the Trustee and the Holders of all the Securities of that series.
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ARTICLE VIII
Immunity of Incorporators, Stockholders,
Officers and Directors
Section 8.1. No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security of any series, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, 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, and that no such personal liability whatever
shall attach to, or is or shall be incurred by the incorporators,
stockholders, officers or directors, as such, of the Company or of any
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 of any series 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 or director, as such, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security of any series 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.
VIII-1
ARTICLE IX
Merger, Consolidation or Sale
Section 9.1. Nothing in this Indenture shall prevent any consolidation or
merger of the Company with or into any other corporation, or any consolidation
or merger of any other corporation with or into the Company, or any sale or
transfer of its assets and liabilities substantially as an entirety to any
other corporation lawfully entitled to acquire the same; provided, however,
that, so long as Securities are outstanding hereunder, the Company covenants
and agrees, that any such consolidation, merger, sale or transfer shall be
upon the condition that the due and punctual payment of the principal of (or
premium, if any, on) and interest on, all the Securities according to their
tenor, and the due and punctual performance and observance of all the terms,
covenants and conditions of this Indenture to be kept or performed by the
Company shall, by an indenture supplemental hereto, executed and delivered to
the Trustee, be assumed by the corporation (if other than the Company) formed
by or resulting from any such consolidation or merger, or which shall have
received the transfer of the assets and liabilities of the Company
substantially as an entirety, just as fully and effectually as if such
successor corporation had been the original party of the first part hereto;
and in the event of any such sale or transfer the predecessor Company may be
dissolved, wound up and liquidated at any time thereafter.
Section 9.2. Every such successor corporation upon executing an indenture
supplemental hereto, as provided in Section 9.1, in form satisfactory to the
Trustee, shall succeed to and be substituted for the Company with the same
effect as if it had been named herein as the Company; and any order,
certificate or resolution of officers of the Company or the Board provided for
in this Indenture may be made by like officials of such successor corporation.
Such successor corporation may thereupon cause to be signed, either in its own
name or in the name of the Company, with such suitable reference, if any, to
such consolidation, merger, sale or transfer as may be required by the
Trustee, any or all of the Securities of any series which shall not
theretofore have been signed by the Company and authenticated by the Trustee
or an Authenticating Agent on its behalf; and upon the written order of such
successor corporation in lieu of the Company, and subject to all the terms,
conditions and restrictions herein prescribed with respect to the
authentication and delivery of the Securities of any series, the Trustee or an
Authenticating Agent on its behalf shall authenticate and deliver any and all
Securities of that series which shall have been previously signed by the
proper officers of the Company and delivered to the Trustee or an
Authenticating Agent on its behalf for authentication, and any of such
Securities which such successor corporation shall thereafter, in accordance
with the provisions of this Indenture, cause to be signed and delivered to the
Trustee or an Authenticating Agent on its behalf for such purpose. All
Securities of that series so authenticated and delivered shall in all respects
have the same rank as the Securities of that series theretofore or thereafter
authenticated and delivered in accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale or transfer, such changes in
phraseology and form (but not in substance) may be made in the Securities of
any series thereafter to be issued as may be appropriate.
Section 9.3. The Trustee may receive and shall, subject to the provisions of
Section 10.1 of this Indenture, be fully protected in relying upon an Opinion
of Counsel or an Officers' Certificate as conclusive evidence that any
supplemental indenture executed under the foregoing Section 9.1 complies with
the foregoing conditions and provisions of this Article.
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ARTICLE X
Concerning the Trustee
Section 10.1. (a) The Trustee undertakes, prior to default and after the
curing of all defaults which may have occurred, to perform such duties and
only such duties as are specifically set forth in this Indenture, and in case
of default (but only during the continuance thereof) to exercise such of the
rights and powers vested in it by this Indenture, and to use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of any resolution, certificate, statement,
opinion, report, document, order or other instrument furnished to the Trustee
pursuant to any provision of this Indenture, shall examine them to determine
whether they conform to the requirements of this Indenture.
(b) No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own wilful misconduct, except that:
(i) prior to default hereunder and after the curing of all defaults which
may have occurred, the Trustee shall not be liable except for the
performance of such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee but the duties and obligations of the Trustee, prior to
default and after the curing of all defaults which may have occurred, shall
be determined solely by the express provisions of this Indenture;
(ii) prior to default hereunder and after the curing of all defaults
which may have occurred, and in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions conforming to the requirements of this Indenture;
(iii) the Trustee shall not be liable for any error of judgment made in
good faith by the Trustee unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iv) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of not less than a majority in principal amount of the
Securities of any series then outstanding relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any personal financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(c) The Trustee shall not be responsible for the validity, sufficiency or
the execution by the Company of this Indenture, or of any indentures
supplemental hereto, or of the Securities of any series, or for the recitals
herein or in the Securities contained (such recitals being made solely by the
Company).
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(d) Subject to the limitations contained in subdivisions (a) and (b) of this
Section 10.1:
(i) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, opinion, notice, consent,
request, order, appraisal, report, bond or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(ii) the Trustee may consult with counsel (who may be counsel to the
Company) and any advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel;
(iii) whenever in the administration of this Indenture, prior to a
default hereunder and after the curing of all defaults which may have
occurred, the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action hereunder,
such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate shall be full warrant to the Trustee for any action taken or
suffered by it under the provisions of this Indenture upon the faith
thereof;
(iv) the Trustee shall be under no obligation to exercise any of the
trusts or powers hereof at the request, order or direction of any of the
Holders of Securities of any series, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security
or indemnity satisfactory to it against the costs, expenses and liabilities
to be incurred therein or thereby; and
(v) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or power
conferred upon it by this Indenture.
(e) Subject to the provisions of subdivision (b) of this Section 10.1, prior
to a default hereunder and after the curing of all defaults which may have
occurred, the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, opinion, notice,
consent, request, order, appraisal, report, bond or other document or
instrument unless requested in writing so to do by the Holders of not less
than a majority in principal amount of the Securities of any series then
outstanding; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred by
it without negligence or bad faith in the making of such investigation is, in
the opinion of the Trustee (subject to the provisions of subdivisions (a) and
(b) of this Section 10.1), not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as a
condition to so proceeding; and provided further, that nothing in this
subdivision (e) shall require the Trustee to give the Holders of such
Securities any notice other than that required by Section 10.3 hereof. The
reasonable expense of every such examination shall be paid by the Company or,
if paid by the Trustee, shall be repaid by the Company upon demand.
(f) 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 10.2. The Trustee shall be entitled to reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for services rendered by it in
the execution of the trusts hereby created. The Company
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also agrees to indemnify the Trustee for and hold it harmless against loss,
liability or expense incurred without negligence or bad faith on the part of
the Trustee arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
against any claim of liability in the premises. The Trustee shall have a first
lien on all moneys coming into its possession hereunder, for the payment to it
of its compensation and for the repayment to it of all expenses and
disbursements payable by the Company hereunder.
The Trustee shall not be accountable for the use or application by the
Company of any Securities of any series authenticated and delivered hereunder
or of the proceeds of such Securities, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision of this
Indenture, or for the use or application of any moneys received by any paying
agent.
All moneys received by the Trustee under or pursuant to any provision of
this Indenture shall constitute trust funds for the purposes for which they
were paid or are held, but need not be segregated in any manner from any other
moneys and may be deposited by the Trustee, under such conditions as may be
prescribed by law, in its general banking department, and the Trustee shall
not be liable for any interest thereon, except that, so long as the Company is
not in default hereunder, the Trustee will allow and credit to the Company
interest, if any, upon such moneys at such rate as may then be customary for
similar deposits.
Section 10.3. The Trustee shall give to the Holders of Securities of any
series notice, in the manner and to the extent provided in subdivision (c) of
Section 10.10, of the happening of all defaults known to it with respect to
Securities of such series, within 90 days after the occurrence thereof unless
such defaults shall have been cured before the giving of such notice; but,
except in the case of a default resulting from the failure to make any payment
of principal of, premium, if any, on or interest on the Securities of such
series the Trustee may withhold the giving of 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 determines
that the withholding of such notice is in the interest of the Holders of
Securities of such series. For the purposes of this Section 10.3, the term
"default" shall mean any default defined in Section 6.1, irrespective of the
giving of any specified notice and excluding any periods of grace provided for
therein.
Section 10.4. If the Trustee has or shall acquire any conflicting interest
as defined in this Section 10.4, with respect to the Securities of any series
it shall, within 90 days after ascertaining that it has such conflicting
interest if the default (as defined in Section 10.3) to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, either eliminate such conflicting
interest or, except as otherwise provided below, resign with respect to the
Securities of that series, such resignation to become effective upon the
appointment of a successor trustee and such successor's acceptance of such
appointment, and the Company shall take prompt steps to have a successor
appointed in the manner provided in Section 10.6. Except in the case of a
default (as defined in Section 10.3) in the payment of the principal of (or
premium, if any) or interest on any such Security, or in the payment of any
sinking or purchase fund installment, the Trustee shall not be required to
resign as otherwise provided by this Section if the Trustee shall have
sustained the burden of proving, on application to the Commission and after
opportunity for hearing thereon, that: (i) the default (as defined in Section
10.3) may be cured or waived during a reasonable period and under the
procedures described in such application; and (ii) a stay of the Trustee's
duty to resign will not be inconsistent with the interests of Holders of such
Securities. The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise. For
the purposes of this Section 10.4 the Trustee shall be deemed to have a
conflicting interest with
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respect to the Securities of any series if such Securities are in default (as
defined in Section 10.3) and:
(1) the Trustee is trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the Company are outstanding, unless such other indenture is
a collateral trust indenture under which the only collateral consists of
Securities issued and outstanding under this Indenture, provided that there
shall be excluded from the operation of this paragraph any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if (i)
such other indenture or indentures (and all series of securities issuable
thereunder) are at the time wholly unsecured and rank equally and such
other indenture or indentures (and such series) are hereafter qualified
under the Trust Indenture Act of 1939, as amended, unless the Commission
shall have found and declared by order pursuant to Subsection (b) of
Section 305 or Subsection (c) of Section 307 of the Trust Indenture Act of
1939, as amended, that differences exist between the provisions of this
Indenture and the provisions of such other indenture or indentures (or such
series) which are so likely to involve a material conflict of interest as
to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this
Indenture and under such other indenture or indentures, or (ii) the Company
shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that the trusteeship
under this Indenture and such other indenture is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee from
acting as such under this Indenture and under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (A) one individual may be a director and/or an executive officer of
the Trustee and a director and/or an executive officer of the Company, but
may not be at the same time an executive officer of both the Trustee and of
the Company, and (B) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual may be a
director and/or an executive officer of the Trustee and a director of the
Company, and (C) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent, or
depositary, or in any other similar capacity, or, subject to the provisions
of subdivision (1) of this Section 10.4, to act as trustee, whether under
an indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is beneficially
owned either by the Company or by any director, partner or executive
officer of the Company or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer of any such underwriter, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default as hereinafter in this
Section 10.4 defined, (A) 5% or more
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of the voting securities or 10% or more of any other class of security of
the Company, not including the Securities issued under this Indenture and
the securities issued under any other indenture of the Company under which
the Trustee is also trustee, or (B) 10% or more of any class of security of
any underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default as hereinafter in this
Section 10.4 defined, 5% or more of any voting securities of any person
who, to the knowledge of the Trustee, owns 10% or more of the voting
securities of, or controls directly or indirectly or is under direct or
indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default as hereinafter in this
Section 10.4 defined, 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of such default (as defined in Section
10.3) or any anniversary of such default while such default remains
outstanding, in the capacity of executor, administrator, testamentary or
inter vivos trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting securities, or
of any class of security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a conflicting interest
under subdivisions (6), (7), or (8) of this Section 10.4. As to any such
securities of which the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an estate which included
them, the provisions of the preceding sentence shall not apply, for a
period of not more than two years from the date of such acquisition, to the
extent that such securities included in such estate do not exceed 25% of
such voting securities or 25% of any such class of security. Promptly after
the date of any such default and annually in each succeeding year that the
Securities of any series remain in default, the Trustee shall make a check
of its holdings of such securities in any of the abovementioned capacities
as of such dates. If the Company fails to make payment in full of principal
of, or premium, if any, on and interest on any of the Securities issued
under this Indenture when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the abovementioned
capacities as of the date of the expiration of such 30-day period, and
after such date, notwithstanding the foregoing provisions of this
subdivision (9), all such securities so held by the Trustee, with sole or
joint control over such securities vested in it, shall, but only so long as
such failure shall continue, be considered as though beneficially owned by
the Trustee, for the purposes of subdivisions (6), (7), and (8) of this
Section 10.4; or
(10) except under the circumstances described in paragraphs (1), (3),
(4), (5) or (6) of Section 10.9(b), the Trustee shall be or become a
creditor of the Company.
In determining whether the Trustee has a conflicting interest with respect
to any series of Securities under this Section 10.4, each other series of
Securities will be treated as having been issued under an indenture other than
this Indenture unless such series of Securities rank equally and are wholly
unsecured.
The specification of percentages in subdivisions (5) to (9), inclusive, of
this Section 10.4 shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
subdivision (3) or (7) of this Section 10.4.
For the purposes of subdivisions (6), (7), (8), and (9) of this Section
10.4, (A) the term "security" and "securities" shall include only such
securities as are generally known as
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corporate securities, but shall not include any note or other evidence of
indebtedness issued to evidence an obligation to repay moneys lent to a person
by one or more banks, trust companies, or banking firms, or any certificate of
interest or participation in any such note or evidence of indebtedness; (B) an
obligation shall be deemed to be in default when a default in payment of
principal shall have continued for 30 days or more, and shall not have been
cured; and (C) the Trustee shall not be deemed the owner or holder of (i) any
security which it holds as collateral security (as trustee or otherwise) for
an obligation which is not in default as defined in clause (B) above, or (ii)
any security which it holds as collateral security under this Indenture,
irrespective of any default hereunder, or (iii) any security which it holds as
agent for collection, or as a custodian, escrow agent or depositary, or in any
similar representative capacity.
Except as provided in the next preceding paragraph, the word "security" or
"securities" as used in this Section 10.4 shall mean any note, stock, treasury
stock, bond, debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral trust certificate,
pre-organization certificate or subscription, transferable share, investment
contract, voting-trust certificate, certificate of deposit for a security,
fractional undivided interest in oil, gas, or other mineral rights, or, in
general, any interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim certificate
for, receipt for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
For the purposes of this Section 10.4:
(I) The term "underwriter" when used with reference to the Company shall
mean every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has participated
or has had a direct or indirect participation in any such undertaking, or
has participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose interest was limited to a commission from an underwriter or
dealer not in excess of the usual and customary distributors' or sellers'
commission.
(II) The term "director" shall mean any director of a corporation or any
individual performing similar functions with respect to any organization
whether incorporated or unincorporated.
(III) The term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(IV) The term "voting security" shall mean any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement, or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person.
(V) The term "Company" shall mean any obligor upon the Securities.
(VI) The term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated but shall not include the chairman of the board of
directors.
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The percentages of voting securities and other securities specified in this
Section 10.4 shall be calculated in accordance with the following provisions:
(a) A specified percentage of the voting securities of a person means
such amount of the outstanding voting securities of such person as entitles
the holder or holders thereof to cast such specified percentage of the
aggregate votes which the holders of all the outstanding voting securities
of such person are entitled to cast in the direction or management of the
affairs of such person.
(b) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(c) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(d) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(1) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(2) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(3) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise;
(4) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(e) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges, provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes, and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
Section 10.5. There shall at all times be at least one corporate Trustee
under this Indenture which shall be a bank or trust company in good standing,
organized and doing business under the laws of the United States, the State of
Delaware or the State of New York or a corporation or other person permitted
to act as trustee by the Commission, and having a combined capital and surplus
of not less than $20,000,000, which is authorized under the laws of the
jurisdiction of incorporation to exercise corporate trust powers and is
subject to supervision or examination by Federal or state authority. No
obligor upon the Securities or Affiliate of such obligor shall serve as
Trustee. If the Trustee or any successor publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, the combined capital and surplus of the
Trustee or of such successor Trustee shall be deemed to be its combined
capital and surplus as set forth in
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its most recent report of condition so published. If the Trustee shall at any
time cease to satisfy the foregoing qualifications, then the Trustee shall
resign within 30 days thereafter, such resignation to become effective upon
the appointment of a successor Trustee and such successor's acceptance of such
appointment. If the Trustee shall fail or refuse to resign within such 30-day
period, or if the Trustee has or shall acquire any conflicting interest of the
character specified in Section 10.4 with respect to the Securities of one or
more series and shall fail or refuse either to eliminate such conflicting
interest or to resign within the period in Section 10.4 provided in respect of
such resignation, then (i) the Trustee shall, within 10 days after the
expiration of such period, transmit notice of such failure or refusal to the
Holders of Securities of any such series in the manner and to the extent
provided in subdivision (c) of Section 10.10; and (ii) any Holder of
Securities of such series, who has been the bona fide Holder of a Security of
such series for at least six months, may, subject to the provisions of the
last paragraph of Section 6.7 hereof, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee, and the appointment of a successor, if the Trustee
fails, after written request therefor by such Holder of Securities of such
series, to comply with the provisions of Section 10.4.
Section 10.6. The Trustee may resign and be discharged from the trust hereby
created with respect to the Securities of one or more series by giving notice
thereof to the Company specifying the date when such resignation shall take
effect, and by giving notice thereof to the Holders of Securities of such
series, in the manner and to the extent provided in subdivision (c) of Section
10.10. Except as otherwise provided in Sections 10.4 and 10.5, such
resignation shall take effect on the date specified in such notice unless
previously a successor Trustee shall have been appointed as hereinafter
provided, in which event such resignation shall take effect upon the
appointment of such successor Trustee.
The Trustee may be removed at any time with respect to the Securities of any
series by an instrument or instruments in writing delivered to the Trustee and
to the Company signed by the Holders of a majority in principal amount of the
Securities of that series then outstanding or by their duly authorized
attorneys-in-fact.
In case the Trustee shall resign or be removed or otherwise shall become
incapable of acting as Trustee, with respect to the Securities of one or more
series, a successor Trustee may be appointed by the Holders of a majority in
principal amount of the Securities of any series then outstanding by an
instrument or instruments in writing filed with the Company and with the
Trustee and signed by such Holders or by their duly authorized attorneys-in-
fact, or, in the case of the removal of the Trustee pursuant to the provisions
of Section 10.5, by any court of competent jurisdiction acting pursuant to the
provisions of Section 10.5; but until a new trustee shall be appointed by the
Holders of Securities of that series or a court of competent jurisdiction as
herein authorized, the Company, by an instrument executed by order of its
Board, shall appoint a Trustee to fill the vacancy. Every such successor
Trustee so appointed by the Holders of Securities of that series, by a court
of competent jurisdiction or by the Company, shall be a bank or trust company
meeting the requirements provided in Section 10.5.
If in a proper case no appointment of a successor Trustee with respect to
the Securities of any series shall be made pursuant to the foregoing
provisions of this Article within six months after a vacancy shall have
occurred in the office of Trustee, the Holder of any Security of that series
or any retiring Trustee may apply to any court of competent jurisdiction to
appoint a successor Trustee. The court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a successor Trustee.
Section 10.7. (a) Any successor Trustee appointed under any of the methods
herein provided with respect to all Securities shall execute, acknowledge and
deliver to its predecessor Trustee and to the Company an instrument in writing
accepting such
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appointment hereunder and thereupon such successor Trustee, without any
further act, deed or conveyance, shall become fully vested with the rights,
powers, trusts, duties and obligations of its predecessor in the trust
hereunder with like effect as if originally named as Trustee hereunder. The
predecessor Trustee shall, nevertheless, at the written request of the
successor Trustee, pay over to the successor Trustee all moneys at the time
held by it hereunder; and the Company and the predecessor Trustee, upon
payment or provision therefor of any amounts then due the predecessor Trustee
pursuant to the provisions of Section 10.2, shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, trusts, duties and obligations. The Company shall promptly
give notice of the appointment of such successor Trustee to the Holders of all
Securities in the manner and to the extent provided in subdivision (c) of
Section 10.10.
(b) In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series under any of the methods
herein provided, the Company, the predecessor 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 predecessor
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the predecessor 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 predecessor Trustee with respect to the
Securities of that or those series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor 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 predecessor 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 predecessor 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 predecessor Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
predecessor Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates. The Company
shall promptly give notice of the appointment of such successor Trustee with
respect to one or more (but not all) series of Securities to the Holders of
such series in the manner and to the extent provided in subdivision (c) of
Section 10.10.
Section 10.8. Any corporation into which the Trustee or any successor to it
in the trust created by this Indenture may be merged or converted, or with
which it or any successor to it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee or
any successor to it shall be a party, shall be the successor Trustee under
this Indenture without the execution or filing of any instruments or any
further act on the part of any of the parties hereto.
Section 10.9. (a) Subject to the provisions of subdivision (b) of this
Section 10.9, if the Trustee, in its individual capacity, shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the
Company or of any other obligor upon the Securities of any
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series (other than a relationship of the nature specified in subdivision (b)
of this Section 10.9) within three months prior to a default (as defined in
subdivision (c) of this Section 10.9) or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities (as
defined in subdivision (c) of this Section 10.9):
(1) an amount equal to any and all reductions in the amount due and owing
upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subdivision, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such three months' period, or
an amount equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Company and its other
creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal bankruptcy laws or applicable state law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of the claim
hereinafter mentioned, upon any property held by it as security for any
such claim, if such claim was created after the beginning of such three
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default as defined in
subdivision (c) of this Section 10.9 would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or (C),
against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three months' period for property held as security at
the time of such substitution shall, to the extent of fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Holders of
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Securities of any series and the holders of other indenture securities in such
manner that the Trustee, the Holders of Securities of any series and the
holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws or applicable state law, the same
percentage of their respective claims, figured before crediting to the claim
of the Trustee anything on account of the receipt by it from the Company of
the funds and property in such special account and before crediting to the
respective claims of the Trustee, the Holders of Securities of any series and
the holders of other indenture securities dividends on claims filed against
the Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal bankruptcy laws or applicable state law, but after
crediting thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from the
funds and property so held in such special account. As used in this paragraph,
with respect to any claim, the term "dividends" shall include any distribution
with respect to such claim, in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal bankruptcy laws or applicable state
law, whether such distribution is made in cash, securities, or other property,
but shall not include any such distribution with respect to the secured
portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee, the Holders of Securities
of any series, and the holders of other indenture securities, in accordance
with the provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions
to be made to the Trustee, the Holders of Securities of any series, and the
holders of other indenture securities, with respect to their respective
claims, in which event it shall not be necessary to liquidate or to appraise
the value of any securities or other property held in such special account or
as security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a mathematical formula.
Any trustee who has resigned or been removed after the beginning of such
three months' period shall be subject to the provisions of this subsection as
though such resignation or removal had not occurred. If any trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subdivision if and only if the
following conditions exist--
(i) the receipt of property or reduction of claim which would have given
rise to the obligation to account, if such trustee had continued as
Trustee, occurred after the beginning of such three months' period; and
(ii) such receipt of property or reduction of claim occurred within three
months after such resignation or removal.
(b) There shall be excluded from the operation of subdivision (a) of this
Section 10.9 a creditor relationship arising from--
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee; and for the purposes of
this clause the term "security" shall mean any note, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral-trust certificate, investment
contract, certificate of deposit for a security, or, in general, any
interest or instrument commonly known as a "security" or any certificate of
interest or participation in, temporary or interim certificate for, receipt
for, or guaranty of, any of the foregoing;
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(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the
making thereof is given to the Holders of Securities of any series as
provided in Section 10.10 with respect to advances by the Trustee as such;
(3) disbursements made in the ordinary course of business in the capacity
of trustee under an indenture, transfer agent, registrar, custodian, paying
agent, fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or premises
rented; or an indebtedness created as a result of goods or securities sold
in a cash transaction as defined in subdivision (c) of this Section 10.9;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any drafts,
bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subdivision (c) of
this Section 10.9.
(c) As used in this Section 10.9:
(1) the term "default" shall mean any failure to make payment in full of
the principal of (or premium, if any, on) or interest on any of the
Securities or upon the other indenture securities when and as such
principal, premium, if any, or interest becomes due and payable;
(2) the term "other indenture securities" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act of
1939, as amended) outstanding under any other indenture (A) under which the
Trustee is also trustee, (B) which contains provisions substantially
similar to the provisions of subdivision (a) of this Section 10.9, and (C)
under which a default exists at the time of the apportionment of the funds
and property held in said special account;
(3) the term "cash transaction" shall mean any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, xxxx of exchange, acceptance or obligation; and
(5) the term "Company" shall mean any obligor upon the Securities at the
time in question.
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Section 10.10. (a) The Trustee shall, so long as any Securities of any
series are outstanding hereunder, transmit to the Holders, as hereinafter
provided, within 60 days after May 15 of each year, beginning with the year
, a brief report as of such May 15 with respect to any of the following
events which may have occurred within the previous twelve months (but if no
such event has occurred within such period no report need be transmitted)--
(1) any change to the eligibility under Section 10.5 and qualification
under Section 10.4 of the Trustee to serve as Trustee under this Indenture;
(2) the creation of or any material change to a relationship specified in
subsections (1) through (10) of the first paragraph of Section 10.4 hereof.
(3) the character and amount of any advances (and if the Trustee elects
so to state the circumstances surrounding the making thereof) made by it as
Trustee which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to
that of the Securities, on property or funds held or collected by it as a
Trustee, except that the Trustee shall not be required (but may elect) to
state such advances if such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the Securities outstanding on
such date;
(4) the amount, interest rate and maturity date of all other indebtedness
owing to it in its individual capacity, on the date of such report, by the
Company or any other obligor under this Indenture, with a brief description
of any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any manner
described in paragraph (2), (3), (4) or (6) of subdivision (b) of Section
10.9;
(5) any change to the property and funds physically in the possession of
the Trustee in such capacity on the date of such report;
(6) any additional issue of Securities which it has not previously
reported; and
(7) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in the
opinion of the Trustee materially affects the Securities, except action in
respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 10.3.
(b) The Trustee shall, so long as any Securities of any series shall be
outstanding hereunder, also transmit to the Holders, as hereinafter provided,
within the times hereinafter specified, a brief report with respect to the
character and amount of any advances (and if the Trustee so elects to state
the circumstances surrounding the making thereof) made by the Trustee, as
such, since the date of the last report transmitted pursuant to the provisions
of subdivision (a) of this Section 10.10 (or if no such report has been so
transmitted, since the date of the execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that
of the Securities, on property or funds held or collected by the Trustee, as
such, and which it has not previously reported pursuant to this paragraph, if
such advances remaining unpaid at any time aggregate more than 10% of the
principal amount of Securities outstanding at such time, such report to be so
transmitted within 90 days after such time.
(c) All reports required by this Section 10.10, and all other reports or
notices which are required by any other provision of this Indenture to be
transmitted in accordance with the provisions of this Section, shall be
transmitted by mail, first class postage pre-paid to all Holders, as the names
and addresses of such Holders appear upon the Security Register.
The Trustee shall, at the time of the transmission to the Holders of any
report or notice pursuant to this Section 10.10, file a copy thereof with each
stock exchange, if any, upon which the Securities are listed and with the
Commission. The Company will notify the Trustee when Securities are listed on
a stock exchange.
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Section 10.11. The Trustee shall preserve, in as current a form as is
reasonably practicable, all information furnished it pursuant to subdivision
(d) of Section 3.3 hereof, or received by it as paying agent hereunder. The
Trustee may destroy (1) any information so furnished to it by the Company upon
receipt of new information from the Company, (2) any information received by
it as a paying agent, by delivering to itself, as Trustee, not earlier than 45
days after an interest payment date on the Securities, a list containing the
names and addresses of the Holders of Securities obtained from such
information since the delivery of the last previous list, if any, and (3) any
list delivered to itself, as Trustee, which was compiled from information
received by it as paying agent upon the receipt of a new list so delivered.
Within five business days after receipt by the Trustee of a written
application by any three or more Holders of Securities stating that the
applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and accompanied by a copy
of the form of proxy or other communication which such applicants proposed to
transmit, and by reasonable proof that each such applicant has owned a
Security or Securities for a period of at least six months preceding such
application, the Trustee shall, at its election, either (1) afford to such
applicants access to all information so furnished to or received by the
Trustee and not destroyed pursuant to the provisions of this Section 10.11, or
(2) inform such applicants as to the approximate number of Holders according
to the most recent information so furnished to or received by the Trustee, and
as to the approximate cost of mailing to the Holders the form of proxy or
other communication, if any, specified in such application. If the Trustee
shall elect not to afford to such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to all
Holders whose names and addresses are contained in the then current
information filed with the Trustee as aforesaid, copies of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and the
payment, or provision for the payment, of the reasonable expenses of such
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants, and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interest of the
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after granting
opportunity for a hearing upon the objections specified in said written
statement and on notice to the Trustee, shall enter an order refusing to
sustain any of such objections, or if, after the entry of an order sustaining
one or more of such objections, the Commission shall find, after notice and
opportunity for a hearing, that all objections sustained have been met and
shall enter an order so declaring, the Trustee shall comply with such
determination with reasonable promptness after such determination and the
renewal of the aforesaid tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
Neither the Company nor the Trustee nor any Authenticating Agent nor any
paying agent nor any Security registrar shall be liable or accountable to the
Company or to any Holder by reason of disclosure of any such information as to
the names and addresses of Holders in accordance with the provisions of this
Section 10.11, regardless of the source from which such information was
derived, nor by reason of the mailing of any material pursuant to a request
made under this Section 10.11.
Section 10.12. The Trustee or any Authenticating Agent or any paying agent
or Security registrar in its individual or any other capacity may buy, own,
hold and sell any of the Securities or any other evidences of indebtedness or
other securities, whether heretofore or hereafter created or issued, of the
Company or any Subsidiary or Affiliate of the Company with the same rights it
would have if it were not Trustee, Authenticating Agent, paying
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agent or Security registrar; and any Authenticating Agent and, subject to the
provisions of this Article X, the Trustee may engage or be interested in any
financial or other transaction with the Company or any Subsidiary or
Affiliate, including, without limitation, secured and unsecured loans to the
Company or any Subsidiary or Affiliate, and may maintain any and all other
general banking and business relations with the Company and any Subsidiary or
Affiliate, and may act as trustee under an indenture with respect to
indebtedness thereof, with like effect and in the same manner and to the same
extent as if the Trustee were not a party to this Indenture; and no implied
covenant shall be read into this Indenture against the Trustee in respect of
any such matters.
Section 10.13. The Trustee may comply in good faith with any rule,
regulation or order of the Commission made pursuant to the terms and
provisions of the Trust Indenture Act of 1939, as amended, and shall be fully
protected in so doing notwithstanding that such rule, regulation or order may
thereafter be amended or rescinded or determined by judicial or other
authority to be invalid for any reason, but nothing herein contained shall
require the Trustee to take any action or omit to take any action in
accordance with such rule, regulation or order, except as otherwise required
by subdivisions (a) and (b) of Section 10.1.
Section 10.14. At any time when any of the Securities remain outstanding
there may be an Authenticating Agent with respect to one or more series of
Securities appointed by the Trustee to act on its behalf and subject to its
direction in connection with the authentication of the Securities of such
series as set forth in Articles III, IV, V, IX and XI. Such 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
or of any State or Territory or of the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $20,000,000, and being subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority
and (if there be such a corporation willing and able to act as Authenticating
Agent on reasonable and customary terms) having its principal office and place
of business in the State of Delaware or in the Borough of Manhattan of The
City of New York. If such corporation publishes reports of conditions at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section 10.14 the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent without the execution or filing of any paper or any further act on the
part of the Trustee or such Authenticating Agent.
Any Authenticating Agent with respect to one or more series of Securities
may at any time resign by giving written notice of resignation to the Trustee
and to the Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination 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 any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 10.14, the Trustee may appoint a successor
Authenticating Agent with respect to any series of Securities which shall be
acceptable to the Company, shall give written notice of such appointment to
the Company, and the Company shall mail notice of such appointment to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as the names and addresses of such Holders appear upon the
Security Register.
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Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
10.14.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services, and the Trustee shall be entitled to
be reimbursed for such payments subject to the provisions of Section 10.2. An
Authenticating Agent shall have no responsibility or liability for any action
taken by it as such at the direction of the Trustee.
If an appointment is made pursuant to this Section, the Securities shall
have endorsed thereon, in addition to the Trustee's Certificate, an
Authenticating Agent's Certificate in the following form:
This is one of the Securities of the series designated and referred to in
the within-mentioned Indenture.
---------------------------------------
As Authenticating Agent
By ____________________________________
Authorized Officer
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ARTICLE XI
Supplemental Indentures
Section 11.1. The Company, when authorized by resolution of its Board, and
the Trustee, subject to the conditions and restrictions in this Indenture
contained, may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect) for one or more of the
following purposes:
(a) to evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to
Article IX;
(b) to add to the covenants and agreements of the Company for the benefit
of the Holders of all or any series of Securities (and if such covenants
and agreements are for the benefit of less than all series of Securities,
stating that such covenants and agreements are expressly being included
solely for the benefit of such series), and to surrender any right or power
herein reserved to or conferred upon the Company;
(c) 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;
(d) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (i) shall become effective
only when there is no Security outstanding of any series created prior to
the execution of such supplemental indenture which is entitled to the
benefit of such provision or (ii) shall not apply to any such outstanding
Security;
(e) to establish the form or terms of Securities of any series as
permitted by Section 2.1;
(f) 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
10.7(b);
(g) to cure any ambiguity or to correct or supplement any defective or
inconsistent provision contained in this Indenture or in any supplemental
indenture; or
(h) to make such provisions with respect to matters or questions arising
under this Indenture as may be necessary or desirable and not inconsistent
with this Indenture.
The Trustee is hereby authorized to join with the Company in the execution
of any supplemental indenture authorized or permitted by the terms of this
Indenture, to make any further appropriate agreements and stipulations which
may be therein contained, but the Trustee 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.
Any supplemental indenture authorized by the provisions of this Section 11.1
may be executed by the Company and the Trustee without the consent of the
Holders of any of the Securities at the time outstanding, notwithstanding any
of the provisions of Section 11.2.
Section 11.2. With the consent (evidenced as provided in Section 7.1) of the
Holders (or persons entitled to vote, or to give consents respecting the same)
of not less than a majority in principal amount of the outstanding Securities
of each series affected by such supplemental indenture, the Company, when
authorized by a resolution of its Board, and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto
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(which shall conform to the provisions of the Trust Indenture Act of 1939 as
then in effect) for the purpose of adding any provisions to or modifying or
altering in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying or altering in any manner the
rights and obligations of the Holders of such Securities and of the Company;
provided, however, that no such supplemental indenture shall (i) change the
Stated Maturity of the principal of (premium, if any, on), or the interest on,
any Security, or reduce the principal amount of (premium, if any, on), or the
rate of interest on any Security, or change the Currency in which the
principal of (and premium, if any) or interest on such Securities is
denominated or payable, or reduce the amount of the principal of an Original
Issue Discount Security that would be payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.1 without the
consent of the Holder of each outstanding Security so affected, or (ii) reduce
the aforesaid percentage of Securities of any series the Holders of which are
required to consent to any such supplemental indenture, without the consent of
the Holders of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
Upon the request of the Company accompanied by a Certified Resolution
authorizing the execution of any such supplemental indenture and upon the
filing with the Trustee of evidence of the consent of Holders of Securities
affected thereby as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
11.2 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 11.2 the
Company shall mail, first class postage prepaid, to the Holders of the
Securities affected thereby at their last addresses as they shall appear upon
the Security Register, a notice, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 11.3. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article XI, or of Section 9.1, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Securities
affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 11.4. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article XI, or after any action taken at a Holders' meeting pursuant to
Article XII, may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture or as to any
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action taken at any such meeting; and in such case, suitable notation may be
made upon outstanding Securities affected thereby after proper presentation
and demand. If the Company shall so determine, Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board, to any
modification or alteration of this Indenture contained in any such
supplemental indenture, or to any action taken at any such meeting, may be
prepared by the Company, authenticated by the Trustee or an Authenticating
Agent on its behalf and delivered in exchange for outstanding Securities of
such series upon demand of and without cost to, the Holders thereof, upon
surrender of such Securities.
Section 11.5. The Trustee may receive and shall, subject to the provisions
of Section 10.1, be fully protected in relying upon an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article XI is authorized or permitted by the terms of this Indenture and that
it is not inconsistent therewith.
Section 11.6. Nothing in this Article contained shall affect or limit the
right or obligation of the Company to execute and deliver to the Trustee any
instrument of further assurance or other instrument which elsewhere in this
Indenture it is provided shall be delivered to the Trustee.
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ARTICLE XII
Meetings of Holders
Section 12.1. A meeting of Holders of any series of Securities may be called
at any time and from time to time pursuant to the provisions of this Article
XII for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give any
direction to the Trustee or to waive or consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by such Holders pursuant to any of the provisions of
Article VI;
(2) to remove the Trustee or appoint a successor trustee pursuant to the
provisions of Article X;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities
of that series under any other provision of this Indenture, or authorized
or permitted by law.
Section 12.2. The Trustee may at any time call a meeting of Holders of
Securities of any series to take any action specified in Section 12.1, to be
held at such time and at such place in any of the city in which the principal
executive offices of the Company are located, the City of Wilmington,
Delaware, the city in which the principal corporate trust office of the
Trustee is located, the City of Chicago or in the Borough of Manhattan of The
City of New York, as the Trustee shall determine. Notice of every meeting of
such Holders, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed by the
Trustee, first class postage prepaid, to the Company, and to the Holders of
Securities of that series at their last addresses as they shall appear upon
the Security Register, not less than 20 nor more than 60 days prior to the
date fixed for the meeting.
Any meeting of the Holders of Securities of any series shall be valid
without notice if the Holders of all Securities of that series then
outstanding are present in person or by proxy, or if notice is waived before
or after the meeting by the Holders of all outstanding Securities of that
series, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived
notice.
Section 12.3. In case at any time the Company, pursuant to resolution of its
Board, or Holders of not less than a majority in aggregate principal amount of
the Securities of any series then outstanding, shall have requested the
Trustee to call a meeting of Holders of Securities of that series to take any
action specified in Section 12.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the notice of such meeting within 20 days after
receipt of such request, then the Company or such Holders in the amount above
specified may determine the time and the place in any of the city in which the
principal executive offices of the Company are located, the City of
Wilmington, Delaware, the city in which the principal corporate trust office
of the Trustee is located, the City of Chicago or in the Borough of Manhattan
of The City of New York, for such meeting and may call such meeting for the
purpose of taking such action, by mailing or causing to be mailed notice
thereof as provided in Section 12.2.
Section 12.4. To be entitled to vote at any meeting of Holders of Securities
of any series a person shall (a) be a registered Holder of one or more
Securities of that series, or (b) be a person appointed by an instrument in
writing as proxy for the registered Holder or Holders
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of Securities of that series. The only persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 12.5. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of any series, in regard to proof of the
holding of Securities of that series and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, and submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it shall
think fit. Unless otherwise determined by the Company pursuant to Section 7.1,
such regulations may fix a record date and time for purposes of determining
the registered Holders of any series of Securities entitled to vote at such
meeting, which record date shall be (i) the later of 30 days prior to the
first solicitation of the vote at such meeting or the date of the most recent
list of Holders furnished to the Trustee prior to such solicitation pursuant
to Section 3.3 (d) hereof or (ii) such other date determined by the Trustee.
If the Trustee sets such a record date only those persons who are registered
Holders of such Securities at the record date and time so fixed shall be
entitled to vote at such meeting whether or not they shall be such Holders at
the time of the meeting. Such regulations may further provide that written
instruments appointing proxies, regular on their face, may be presumed valid
and genuine without the proof specified in Section 7.2 or other proof. Except
as otherwise permitted or required by any such regulations, the holding of
such Securities shall be proved in the manner specified in Section 7.2 and the
appointment of any proxy shall be proved in the manner specified in Section
7.2 or by having the signature of the person executing the proxy witnessed or
guaranteed by any bank, banker or trust company satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a temporary chairman
of the meeting, unless the meeting shall have been called by the Company or by
Holders of Securities of any series as provided in Section 12.3, in which case
the Company or such Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Securities of that series represented at the
meeting and entitled to vote.
Subject to the provisions of Section 7.4, at any meeting each Holder of
Securities of any series or proxy shall be entitled to one vote for each
$1,000 principal amount at Stated Maturity (or the Dollar equivalent thereof
based upon the Market Exchange Rate on the latest date for which such rate was
established on or before the date for determining the Holders entitled to
perform such act, if the principal amount of any Securities of any series is
denominated in any Foreign Currency) of Securities of that series, provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Securities of that series challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities of that series
held by him or instruments in writing as aforesaid duly designating him as the
person to vote on behalf of other such Holders. At any meeting of Holders of
Securities of that series, the presence of persons holding or representing any
number of such Securities shall be sufficient for a quorum. Any meeting of
such Holders duly called pursuant to the provisions of Section 12.2 or 12.3
may be adjourned from time to time by vote of the Holders of a majority in
principal amount of the Securities of that series represented at the meeting
and entitled to vote, and the meeting may be held as so adjourned without
further notice.
Section 12.6. The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures
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of the Holders of Securities of that series or of their representatives by
proxy and the principal amount of the Securities of that series voted by the
ballot. The permanent chairman of the meeting shall appoint two inspectors of
votes, who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts, setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 12.2. The record shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the
other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 12.7. Nothing in this Article XII contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Holders of Securities of any series or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise
of any right or rights conferred upon or reserved to the Trustee or to the
Holders of Securities of that series under any of the provisions of this
Indenture or of such Securities.
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ARTICLE XIII
Satisfaction and Discharge of Indenture
or Certain Obligations
Section 13.1. If (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and in lieu of or
in substitution for which other Securities shall have been authenticated and
delivered) and not theretofore cancelled, or (b) all the Securities not
theretofore cancelled or delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable at
their Stated Maturity within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption, and the Company shall deposit with the Trustee as
trust funds the entire amount sufficient to pay at Stated Maturity or upon
redemption all of the Securities (other than any Securities which shall have
been destroyed, lost or stolen and in lieu of or in substitution for which
other Securities shall have been authenticated and delivered) not theretofore
cancelled or delivered to the Trustee for cancellation, including principal
(and premium, if any) and interest due or to become due to such date of Stated
Maturity or Redemption Date, as the case may be, but, excluding, however, the
amount of any moneys for the payment of principal of (and premium, if any, on)
or interest on the Securities theretofore deposited with the Trustee and (1)
repaid by the Trustee to the Company in accordance with the provisions of
Section 13.3, or (2) paid by the Trustee to any State pursuant to its
unclaimed property or similar laws, and if in either case the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect, and the Trustee, on
demand of the Company accompanied by an Officers' Certificate and an Opinion
of Counsel, each stating that in the opinion of the signers all conditions
precedent to the satisfaction and discharge of this Indenture have been
complied with, and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this
Indenture. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with the Indenture or the Securities, and any such obligation for
reimbursement shall survive this Indenture.
Section 13.2. Any moneys, U.S. Government Obligations, and Eligible
Obligations which at any time shall be deposited by the Company or on its
behalf with the Trustee or any paying agent (other than the Company) for the
purpose of paying or redeeming any of the Securities shall be held in trust
and applied by the Trustee to the payment, to the Holders of the particular
Securities for the payment or redemption of which such moneys have been
deposited, of all sums due and to become due thereon for principal (and
premium, if any) and interest, or analogous payments as contemplated by
Section 13.4, upon presentation and surrender of such Securities at the office
of the Trustee or any paying agent, all subject, however, to the provisions
hereinafter contained in this Article XIII. Neither the Company nor the
Trustee (except as provided in Section 10.2) nor any paying agent shall be
required to pay interest on any moneys so deposited.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against U.S. Government Obligations or
Eligible Obligations deposited pursuant to Section 13.4 or the interest and
principal received in respect of such obligations other than any payable by or
on behalf of Holders.
The Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money, U.S. Government Obligations, or Eligible
Obligations held by it as provided in Section 13.4 which, in the opinion of
any independent firm of public accountants of recognized standing selected by
the Board expressed in a written certification thereof
XIII-1
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such money,
U.S. Government Obligations, or Eligible Obligations were deposited or
received.
Section 13.3. Any moneys deposited with the Trustee or any paying agent
remaining unclaimed by the Holders of Securities for three years after the
date upon which the principal of (premium if any, on) or interest on such
Securities shall have become due and payable, shall be repaid to the Company
by the Trustee or such paying agent, upon demand, and such Holders shall
thereafter be entitled to look only to the Company for payment thereof;
provided, however, that, before being required to make any such payment to the
Company, the Trustee may, at the expense of the Company, cause to be mailed to
the Holders of such Securities, at their last addresses as they appear on the
Security Register, notice that such moneys remain unclaimed and that, after a
date named in said notice, the balance of such moneys then unclaimed will be
returned to the Company.
Upon the satisfaction and discharge of this Indenture as to the Securities
of any series, all moneys then held by any paying agent other than the Trustee
hereunder shall, upon demand of the Company, be repaid to it and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
Section 13.4. Except as otherwise provided in this Section 13.4 or pursuant
to Section 2.1, the Company may terminate its obligations as to the Securities
of any series if:
(a) all Securities of such series previously authenticated and delivered
(other than destroyed, lost or stolen Securities which have been replaced
or Securities which are paid pursuant to Section 3.1 or Securities for
whose payment money or securities have theretofore been held in trust and
thereafter repaid to the Company, as provided in Sections 13.2 and 13.3)
have been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder; or
(b)(1) the Company has irrevocably deposited or caused to be deposited
with the Trustee or a paying agent (and conveyed all right, title and
interest for the benefit of the Holders, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee, as trust
funds in trust solely for the benefit of the Holders for that purpose), (A)
money in an amount sufficient, or (B) U.S. Government Obligations (if the
Securities of the series are denominated in Dollars) or Eligible
Obligations (if the Securities of the series are denominated in a Foreign
Currency) maturing as to principal and interest in such amounts and at such
times as are sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (without consideration of any reinvestment of such
interest), or (C) a combination thereof in an amount sufficient, to pay
principal (and premium, if any) and interest on the outstanding Securities
of such series on the dates such installments are due to redemption or
maturity, and any mandatory sinking fund payments or analogous payments
applicable to such outstanding Securities;
(2) such deposit as described in this Section 13.4 will not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound;
(3) no defaults as defined in Section 6.1 shall have occurred and be
continuing on the date of such deposit, and no default under Section 6.1(e)
or 6.1(f) shall have occurred and be continuing on the 91st day after such
date;
(4) the Company shall have delivered to the Trustee (i) either (A) a
ruling received from the Internal Revenue Service to the effect that the
Holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of the Company's exercise
of its option under this Section 13.4 and will be subject
XIII-2
to Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such option had not been
exercised, or (B) an Opinion of Counsel by recognized counsel who is not an
employee of the Company to the same effect as the ruling described in
Clause (A) and (ii) an Opinion of Counsel to the effect that, after the
passage of 90 days following the deposit, (x) the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally, or
(y) if a court was to rule under any such law in any case or proceeding
that the trust funds remained property of the Company (AA) assuming such
trust funds remained in the Trustee's possession prior to such court ruling
to the extent not paid to Holders of Securities of such series, the Trustee
will hold, for the benefit of the Holders of such Securities, a valid and
perfected security interest in such trust funds that is not avoidable in
bankruptcy or otherwise, and (BB) the Holders of Securities will be
entitled to receive adequate protection of their interests in such trust
funds if such trust funds are used;
(5) the Company has paid or caused to be paid all sums then payable by
the Company hereunder and under such Securities; and
(6) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this Indenture
with respect to Securities of such series have been complied with.
Notwithstanding the foregoing Clause (b) prior to the end of the 90-day
period referred to in subclause (b)(4)(ii) above, none of the Company's
obligations under this Indenture shall be discharged, and subsequent to the
end of such 90-day period only the Company's obligations in Sections 2.5, 2.6,
3.1, 3.2, 10.2 and 13.2 shall survive until the Securities of such series are
no longer outstanding. If and when a ruling from the Internal Revenue Service
or Opinion of Counsel referred to in subclause (b)(4)(i) above is able to be
provided specifically without regard to, and not in reliance upon, the
continuance of the Company's obligations under Section 3.1, then the Company's
obligations under such Section 3.1 shall cease upon delivery to the Trustee of
such ruling or Opinion of Counsel and compliance with the other conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture with respect to Securities of such series.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture with respect to such Securities
except for those surviving obligations specified above.
Section 13.5. The Trustee or a paying agent (other than the Company) shall
hold, in trust, the money, U.S. Government Obligations or Eligible Obligations
deposited with it pursuant to Section 13.4 hereof. The Trustee or paying agent
shall have been irrevocably instructed to apply the deposited money and the
proceeds from the U.S. Government Obligations or Eligible Obligations in
accordance with the terms of this Indenture and the terms of the Securities of
the series to the payment of principal (and premium, if any) and interest on
such Securities.
XIII-3
ARTICLE XIV
Miscellaneous Provisions
Section 14.1. Nothing in this Indenture, expressed or implied, is intended
or shall be construed to confer upon, or to give to, any person or
corporation, other than the parties hereto, their successors and assigns, and
the Holders of the Securities of any series, any right, remedy or claim under
or by reason of this Indenture or any provisions hereof; and the provisions of
this Indenture are for the exclusive benefit of the parties hereto, their
successors and assigns, any Authenticating Agent or paying agent and the
Holders of the Securities of any series.
Section 14.2. Unless otherwise specifically provided, the certificate or
opinion of any independent firm of public accountants of recognized standing
selected by the Board shall be conclusive evidence of the correctness of any
computation made under the provisions of this Indenture. The Company shall
furnish to the Trustee upon its request a copy of any such certificate or
opinion.
Section 14.3. In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture, but this Indenture shall be construed as if such invalid or illegal
or unenforceable provisions had never been contained herein.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by operation of subsection (c) of Section 318 of the Trust
Indenture Act of 1939, as amended, the imposed duties shall control.
Section 14.4. Whenever in this Indenture the Company shall be required to do
or not to do anything so long as any of the Securities of any series shall be
outstanding, the Company shall, notwithstanding any such provision, not be
required to comply with such provisions if it shall be entitled to have this
Indenture satisfied and discharged pursuant to the provisions hereof, even
though in either case the Holders of any of the Securities of that series
shall have failed to present and surrender them for payment pursuant to the
terms of this Indenture.
Section 14.5. Although this Indenture, for convenience and for the purpose
of reference, is dated as of , the actual date of execution by
the Company and by the Trustee is as indicated by their respective
acknowledgments hereto annexed.
Section 14.6. Unless otherwise expressly provided, any order, notice,
request, demand, certificate or statement of the Company required or permitted
to be made or given under any provision hereof shall be sufficiently executed
if signed by its Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents and by its Vice President, Finance,
its Treasurer or one of its Assistant Treasurers or its Secretary or one of
its Assistant Secretaries.
Upon any application, demand or request by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action, have been complied with, and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with.
Each certificate or opinion by or on behalf of the Company with respect to
compliance with a condition or covenant provided for in this Indenture (other
than certificates provided pursuant to Section 3.4 of this Indenture) shall
include (1) a statement that the person
XIV-1
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon information which is in the
possession of the Company, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement, or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as
the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any certificate or
opinion of any independent firm of public accountants filed with the Trustee
shall contain a statement that such firm is independent.
Section 14.7. If any Interest Payment Date or other payment date shall fall
on a day other than a Business Day, then any payment or deposit by or on
behalf of the Company required under the terms hereof to be made on such date
may be made instead on the next succeeding Business Day with the same force
and effect as if made on such date.
Section 14.8. All notices to or demands upon the Trustee shall be in writing
and may be served or presented, and such demands may be made, at the principal
office of the Trustee, , attention:
. Any notice to or demand upon the Company shall be deemed to have been
sufficiently given or served by the Trustee or any Holder for all purposes, by
being mailed by registered mail addressed to the Company, attention of the
President, at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000, or at such other
address as may be filed in writing by the Company with the Trustee.
Section 14.9. All the covenants, promises and agreements in this Indenture
contained by or on behalf of the Company, or by or on behalf of the Trustee,
shall bind and inure to the benefit of their respective successors and
assigns, whether so expressed or not.
Section 14.10. The descriptive headings of the several Articles of this
Indenture are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
Section 14.11. This Indenture may be simultaneously executed in any number
of counterparts, each of which when so executed and delivered shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 14.12. This Indenture shall be governed in accordance with the
internal laws of the State of .
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In Witness Whereof, Sears Xxxxxxx Acceptance Corp. has caused this Indenture
to be signed in its corporate name by its , and its corporate
seal to be affixed hereto and attested to by one of its and
has caused this Indenture to be signed in its
corporate name by one of its and impressed with its
corporate seal, attested to by one of its , all as of the
day and year first above written.
Sears Xxxxxxx Acceptance Corp.
By ____________________________________
(Corporate Seal)
Attest:
---------------------------------------
By ____________________________________
(Corporate Seal)
Attest:
---------------------------------------
State of Delaware )
) ss:
County of New Castle )
I, , a Notary Public in and for the County and State aforesaid,
do hereby certify that , the , and ,
, of Sears Xxxxxxx Acceptance Corp., who are personally known to me
to be the same persons whose names are subscribed to the foregoing Indenture
as such and , appeared before me this day in person, and
acknowledged that they signed, sealed and delivered the said Indenture as
their free and voluntary act, and as the free and voluntary act of said
Company for the uses and purposes therein set forth, and caused the corporate
seal of said Company to be thereto affixed.
Given under my hand and notarial seal, this day of .
---------------------------------------
Notary Public
My Commission Expires:
[seal]
State of )
) ss:
County of )
I, , a Notary Public in and for the County and State aforesaid,
do hereby certify that , , and ,
, of , Trustee under the foregoing Indenture, who are
personally known to me to be the same persons whose names are subscribed to
the foregoing instrument as such and appeared before me
this day in person, and acknowledged that they signed, sealed and delivered
the said Indenture as their free and voluntary act, and as the free and
voluntary act of said Corporation for the uses and purposes therein set forth,
and caused the corporate seal of said Corporation to be thereto affixed.
Given under my hand and notarial seal, this day of .
---------------------------------------
Notary Public
My Commission Expires:
[seal]
