Exhibit 4(a)
------------------------------------------------------------------------------
TRUST INDENTURE
-------------------------
Dated as of August __, 1998
between
XXXXXX & XXXXX CORPORATION, as Issuer
and
THE BANK OF NEW YORK, as Trustee
-------------------------
Debt Securities
------------------------------------------------------------------------------
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act") and Indenture
Indenture
Trust Indenture Act Section Section
-------------------------- ---------
Section 310 (a)(1)................ 6.09
(a)(2)................ 6.09
(b)................... 6.10
Section 311 (b)(4)................ 6.13
(b)(6)................ 6.13
Section 312 (a)................... 7.01
(b)................... 7.02
(c)................... 7.02
Section 313 (a)................... 7.03
(b)(2)................ 7.03
(c)................... 7.03
(d)................... 7.03
Section 314 (a)................... 7.04
(c)(1)................ 1.02
(c)(2)................ 1.02
(e)................... 1.02
(f)................... 1.02
Section 316 (a) (last sentence)... 1.01
(a)(1)(A)............. 5.02, 5.12
(a)(1)(B)............. 5.13
(b)................... 5.08
Section 317 (a)(1)................ 5.03
(a)(2)................ 5.04
(b)................... 10.03
Section 318 (a)................... 1.07
---------------
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
NOTE: Section 318(c) of the Trust Indenture Act provides that the provisions
of Sections 310-317 are a part of and govern every qualified indenture,
whether or not physically contained therein.
TABLE OF CONTENTS
Page
----
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions.................................................. 1
Section 1.2. Compliance Certificates and Opinions......................... 9
Section 1.3. Form of Documents Delivered to Trustee....................... 9
Section 1.4. Acts of Holders.............................................. 10
Section 1.5. Notes, Etc. to Trustee and Company........................... 11
Section 1.6. Notice to Holders; Waiver.................................... 11
Section 1.7. Conflict with Trust Indenture Act............................ 12
Section 1.8. Effect of Headings and Table of Contents..................... 12
Section 1.9. Successors and Assigns....................................... 12
Section 1.10. Separability Clause.......................................... 12
Section 1.11. Benefits and Indenture....................................... 12
Section 1.12. Governing Law................................................ 13
Section 1.13. Legal Holidays............................................... 13
Section 1.14. Language of Notices.......................................... 13
Section 1.15. Counterparts................................................. 13
ARTICLE 2
Security Forms
Section 2.1. Forms Generally.............................................. 13
Section 2.2. Form of Trustee's Certificate of Authentication.............. 14
Section 2.3. Global Securities............................................ 14
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series......................... 15
Section 3.2. Denominations................................................ 19
Section 3.3. Execution, Authentication, Delivery and Dating............... 19
Section 3.4. Temporary Securities......................................... 21
Section 3.5. Registration, Transfer and Exchange.......................... 21
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities............. 24
Section 3.7. Payment of Interest; Interest Rights Preserved............... 25
Section 3.8. Persons Deemed Owners........................................ 26
Section 3.9. Cancellation................................................. 27
Section 3.10. Computation of Interest...................................... 27
Section 3.11. CUSIP Numbers................................................ 27
ARTICLE 4
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture...................... 28
Section 4.2. Application of Trust Money................................... 29
ARTICLE 5
Remedies
Section 5.1. Events of Default............................................ 30
Section 5.2. Acceleration of Maturity; Rescission and Annulment........... 31
Section 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................. 32
Section 5.4. Trustee May File Proofs of Claim............................. 33
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities................................................. 34
Section 5.6. Application of Money Collected............................... 34
Section 5.7. Limitation on Suits.......................................... 34
Section 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................... 35
Section 5.9. Restoration of Rights and Remedies........................... 35
Section 5.10. Rights and Remedies Cumulative............................... 36
Section 5.11. Delay or Omission Not Waiver................................. 36
Section 5.12. Control by Holders........................................... 36
Section 5.13. Waiver of Past Defaults...................................... 36
Section 5.14. Undertaking for Costs........................................ 37
Section 5.15. Waiver of Stay or Extension Laws..............................37
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities.......................... 38
Section 6.2. Notice of Defaults........................................... 39
Section 6.3. Certain Rights of Trustee.................................... 39
Section 6.4. Not Responsible for Recitals or Issuance of
Securities................................................ 40
Section 6.5. May Hold Securities.......................................... 41
Section 6.6. Money Held in Trust.......................................... 41
Section 6.7. Compensation and Reimbursement............................... 41
Section 6.8. Intentionally Left Blank..................................... 42
Section 6.9. Corporate Trustee Required; Eligibility...................... 42
Section 6.10. Resignation and Removal; Appointment of
Successor.................................................. 43
Section 6.11. Acceptance of Appointment by Successor....................... 45
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business................................................... 46
Section 6.13. Preferential Claims.......................................... 46
Section 6.14. Appointment of Authenticating Agent.......................... 47
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders.................................................... 49
Section 7.2. Preservation of Information; Communications to
Holders.................................................... 49
Section 7.3. Reports by Trustee........................................... 51
Section 7.4. Reports by Company........................................... 51
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc. on Certain
Terms...................................................... 52
Section 8.2. Successor Corporation Substituted............................ 53
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of
Holders.................................................... 53
Section 9.2. Supplemental Indentures with Consent of Holders.............. 54
Section 9.3. Execution of Supplemental Indentures......................... 55
Section 9.4. Effect of Supplemental Indentures............................ 56
Section 9.5. Conformity with Trust Indenture Act.......................... 56
Section 9.6. Reference in Securities to Supplemental Indentures........... 56
ARTICLE 10
Covenants
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts........................................ 56
Section 10.2. Maintenance of Office or Agency............................. 56
Section 10.3. Money for Securities Payments to be Held in
Trust..................................................... 57
Section 10.4. Corporate Existence......................................... 59
Section 10.5. Statement as to Default..................................... 59
Section 10.6. Additional Amounts.......................................... 59
Section 10.7. Calculation of Original Issue Discount...................... 60
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article.................................... 60
Section 11.2. Election to Redeem; Notice to Trustee....................... 60
Section 11.3. Selection by Trustee of Securities to be Redeemed........... 61
Section 11.4. Notice of Redemption........................................ 61
Section 11.5. Deposit of Redemption Price................................. 62
Section 11.6. Securities Payable on Redemption Date....................... 62
Section 11.7. Securities Redeemed in Part................................. 63
ARTICLE 12
Intentionally Left Blank
ARTICLE 13
Defeasance and Covenant
Section 13.1. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance......................... 63
Section 13.2. Defeasance and Discharge.................................... 64
Section 13.3. Covenant Defeasance......................................... 64
Section 13.4. Conditions to Defeasance or Covenant Defeasance............. 65
Section 13.5. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions............. 67
ARTICLE 14
Sinking Funds
Section 14.1. Applicability of Article.................................... 68
Section 14.2. Satisfaction of Sinking Fund Payments with
Securities................................................ 68
Section 14.3. Redemption of Securities for Sinking Fund................... 69
ARTICLE 15
Securities in Foreign Currencies
Section 15.1. Applicability of Article.................................... 69
SCHEDULE I Supplemental Indenture
EXHIBIT A Form of Debt Security
TRUST INDENTURE
INDENTURE, dated as of August 1, 1998 between Xxxxxx & Xxxxx
Corporation, a Tennessee corporation (the "Company") and The Bank of New York,
a New York banking corporation, as trustee (the "Trustee").
RECITALS
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its
senior unsecured debentures, bonds, notes or other evidences of indebtedness
(herein called the "Securities"), unlimited as to principal amount, to bear
such rates of interest, to mature at such time or times, to be issued in one
or more series and to have such other provisions as shall be fixed as
hereinafter provided;
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture. All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have been done;
and
WHEREAS, this Indenture is subject to the provisions of the
Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required
to be part of this Indenture and, to the extent applicable, shall be governed
by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities or of any series thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.1. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" or "GAAP" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America as of the
date of such computation; and
(d) the words "herein," "hereof," "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes, assessments or
other governmental charges imposed on Holders specified therein and which are
owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities of one or
more series.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee of the board of directors of the
Company.
"Board Resolution" means a copy of one or more resolutions
certified by the Secretary or Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on
the date of such certification, delivered to the Trustee.
"Business Day" means any day other than Saturday, Sunday or
other day on which banking institutions in New York are authorized or
obligated by law to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means Xxxxxx & Xxxxx Corporation or any successor
Corporation which shall have become such under this Indenture.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its President or any Vice
President and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which
issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international
banking community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Union or (iii) any currency unit or composite currency other than the
ECU for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the date of
original execution of this Indenture is located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
"Corporation" includes corporations and limited liability
companies and, except for purposes of Article Eight, associations, companies
and business trusts.
"Currency" with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on or any
Additional Amounts with respect to any Security, means Dollars or the Foreign
Currency, as the case may be, in which such payment, deposit or other transfer
is required to be made by or pursuant to the terms hereof or such Security and,
with respect to any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof or such Security, means Dollars.
"CUSIP Number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities of any series
issuable upon original issuance in whole or in part in the form of one or more
Global Securities, the clearing agency registered under the Securities Exchange
Act of 1934, as amended, specified for that purpose as contemplated by Section
3.1.
"Dollars" means a dollar or other equivalent unit of legal
tender for payment of debts in the United States of America.
"ECU" means the European Currency Units as defined and revised
from time to time by the Counsel of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Community.
"European Union" means the European Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 5.1.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued by the
government of one or more countries other than the United States or by any
recognized confederation or association of such governments.
"Global Security" means a Security bearing the legend specified
in Section 2.3 evidencing all or part of a series of Securities, issued to the
Depository with respect to such series or its nominee and registered in the
name of such Depository or nominee.
"Government Obligations" means securities which are (x) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which
the principal of or any premium or interest on any Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment
or payments thereunder are supported by the full faith and credit of such
government or governments, or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America or such other governments or governments, in each case where the
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other
governments or governments, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank as custodian with respect to any such
Government Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the
custodian in respect to the Government Obligation or the specific payment of
principal of or interest on the Government Obligation evidenced by such
depository receipt.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
of each particular series of Securities established as contemplated by Section
3.1.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest" with respect to any Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 10.6, includes such
Additional Amounts.
"Interest Payment Date" with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity" with respect to any Security, means the date on
which the principal of such Security, or an installment of principal, becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, notice of redemption or repurchase or
otherwise and includes the Redemption Date.
"Officer's Certificate" means a certificate signed by the
President or any Vice President of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be an employee of or of counsel to the Company, or other counsel reasonably
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security issued
pursuant to this Indenture which provides for declaration of an amount less
than the principal face amount thereof to be due and payable upon acceleration
of the Maturity pursuant to Section 5.2.
"Outstanding" when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment at the Maturity thereof money
in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities for whose payment or redemption money or
Government Obligations as contemplated by Section 13.10
in the necessary amount have been theretofore deposited
with the Trustee (or another trustee satisfying the
requirements of Section 6.9) in trust for the Holders
of such Securities in accordance with Section 13.5; and
(iv) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this
Indenture, unless there shall have been presented to
the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose
hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (A)
the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be equal to the amount of the principal
thereof that would be due and payable as of the date of such determination
upon acceleration of the Maturity thereof pursuant to Section 5.2, (B) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall
be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in this Indenture, (C) the principal
amount of a Security denominated in a Foreign Currency shall be the Dollar
equivalent, determined on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (A) above) of such
Security, and (D) Securities owned by the Company or any other obligor or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment" with respect to the Securities of any
series, means the place where the principal of (and premium, if any), interest
on, and Additional Amounts with respect to, the Securities of that series are
payable as provided in or pursuant to this Indenture or such Securities.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date" with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price" with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture or such Security.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified in or
pursuant to this Indenture or such Security as the "Regular Record Date."
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture, provided, however, that if at any time there
is more than one Person acting as Trustee under this Indenture, "Securities"
with respect to any such Person shall mean securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any
series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest
on any Security means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" with respect to any Security or any
installment of principal thereof or interest thereon or any Additional
Amounts, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due
and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls,
directly or indirectly, more than 50% of the shares of voting stock. For the
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder.
If at any time there is more than one such Person, "Trustee" shall mean such
Person and as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 9.5.
"Vice President" when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president."
Section 1.2. Compliance Certificates and Opinions. Except as
otherwise expressly provided in this Indenture, upon any application or request
by the Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with or an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that, in the case of any
such application or request as to which the furnishing of such documents or
any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished. Any Officer's Certificate will comply with
Section 314(e) of the Trust Indenture Act.
Section 1.3. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the opinion with respect to the matters upon which the certificate or
opinion is based are erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need
not, be consolidated and form one instrument.
Section 1.4. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient and in accordance with such reasonable rules
as the Trustee may determine; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders of
Securities of any series any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option, fix
in advance a record date for the determination of Holders of Securities
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to
do so. Any such record date shall be fixed at the Company's discretion.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent and waiver or other Act may be sought or given
before or after the record date, but only the Holders of Securities of
record at the close of business on such record date shall be deemed to be
Holders of Securities for the purpose of determining whether Holders of the
requisite proportion of Securities of such series Outstanding have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Securities of such series Outstanding shall be computed as of such record
date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee, any Security Registrar, any Paying Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section 1.5. Notes, Etc. to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with:
(a) the Trustee by any Holder or the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Trustee Administration; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company at 0000 X&X Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000, attention Vice
President-Finance and Treasurer (with a copy to the Vice President-General
Counsel and Secretary), or at any other address previously furnished in
writing to the Trustee by the Company.
Section 1.6. Notice to Holders; Waiver. Where this Indenture
or any Security provides for notice to Holders of any event, such notice shall
be sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at the Holder's address as it appears in the Security
Register, not later than the latest date, or not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given or provided.
Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.7. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
Section 1.8. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.9. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 1.10. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits and Indenture. Nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.12. Governing Law. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York.
Section 1.13. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security shall not be
a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) or any Additional Amounts need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if
made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and no interest shall accrue with respect to such payments for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day.
Section 1.14. Language of Notices. Any request, demand,
authorization, direction, notice, consent, election or waiver required or
permitted under this Indenture shall be in the English language, except that,
if the Company so elects, any published notice may be in an official language
of the country of publication.
Section 1.15. Counterparts. This Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE 2
Security Forms
Section 2.1. Forms Generally. The Securities of each series
shall be in substantially the form attached hereto as Exhibit A as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be consistently
herewith, be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
If any form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Secretary or Assistant Secretary of
the Company and delivered to the Trustee at the same time as or prior to the
delivery of the Company Order contemplated by Section 3.3 for the
authentication and delivery of such Securities.
The definitive Securities may be produced in any manner
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Unless otherwise provided in or pursuant to this Indenture or
any Securities, the Securities shall be issuable in registered form without
coupons and shall not be issuable upon the exercise of warrants.
Section 2.2. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:____________________________
Authorized Signatory
Section 2.3. Global Securities. Unless otherwise provided in
or pursuant to this Indenture or any Securities, the Securities shall be
issued in global form. Any such Security may provide that it or any number of
such Securities shall represent the aggregate amount of all Outstanding
Securities of such series (or such lessor amount as is permitted by the terms
thereof) from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time
to time be increased or reduced to reflect exchanges. Any endorsement of any
Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person as shall
be specified therein or in the Company Order to be delivered pursuant to
Section 3.3 or 3.4 with respect thereto.
Subject to the provisions of Section 3.3 and, if applicable,
Section 3.4, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 3.3 or 3.4 has been, or simultaneously is, delivered, any instructions
by the Company with respect to a Security in global form shall be in writing
but need not be accompanied by or contained in an Officer's Certificate and
need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.7, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in global form shall be made to the Person specified
therein.
Notwithstanding the provisions of Section 3.8 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder, the holder of such
global Security in registered form.
Any Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depository or a nominee of a Depository. This
Security is exchangeable for Securities registered in the
name of a Person other than the Depository or its nominee
only in the limited circumstances described in the
Indenture, and no transfer of this Security (other than a
transfer of this Security as a whole by the Depository to a
nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository) may
be registered except in such limited circumstances."
ARTICLE 3
The Securities
Section 3.1. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and (subject to
Section 3.3) set forth in an Officer's Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of
any series (subject to the last paragraph of this Section 3.1).
(a) the title of the Securities and the series in which such
Securities shall be included (which shall distinguish the Securities of the
series from all other Securities);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3 are deemed never to have been
authenticated and delivered hereunder);
(c) the date or dates on which the principal of the
Securities of the series is payable;
(d) the Person to whom any interest on any Security of the
series shall be payable if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the rate or
rates, which may be fixed or variable, at which the Securities of the
series shall bear interest, if any, if the rate is variable, the manner of
calculation thereof, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable
and the Regular Record Date for the interest payable on any Interest
Payment Date;
(e) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series shall be payable;
(f) the date or dates on which, the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company;
(g) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the date or dates on
which, the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation and
any provisions for the remarketing of such securities so redeemed or
purchased;
(h) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall
be issuable;
(i) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2 or the method by which such portion is to be determined;
(j) the application, if any, of either or both of Section
13.2 and Section 13.3 to the Securities of the series;
(k) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities shall be payable;
(l) if the principal of (and premium, if any) or interest,
if any, on the Securities of that series are to be payable, at the election
of the Company or a Holder thereof, in a currency (including a composite
currency) other than that in which the Securities are stated to be payable,
the date or dates on which, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(m) if the amount of payments of principal of (and premium
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method or methods
based on a currency (including a composite currency) other than that in
which the Securities are stated to be payable, the terms and conditions
upon which and the manner in which such amounts shall be determined and
paid or payable;
(n) if the amount of payments of principal of, any premium or
interest on the Securities of the series may be determined with reference to
an index, the manner in which such amounts shall be determined;
(o) whether any Securities of the series are to be issuable
upon original issuance in the form of one or more Global Securities and, if
so, (i) the Depository with respect to such Global Security or Securities
and (ii) the circumstances under which any such Global Security may be
exchanged for Securities registered in the name of, and any transfer of
such Global Security may be registered to, a Person other than such
Depository or its nominee, if other than as set forth in Section 3.5;
(p) whether and under what circumstances Additional Amounts on
such Securities or any of them shall be payable;
(q) the notice, if any, to Holders regarding the determination
of interest on a floating rate Security and the manner of giving such
notice, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(r) intentionally left blank;
(s) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(t) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions;
(u) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security Registrar,
Paying Agent or Authenticating Agent with respect to such Securities; and
(v) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture) and any deletions from or
modifications or additions to this Indenture in respect of such series.
All Securities of any one series shall be substantially
identical except as to denomination, currency, rate of interest, or method of
determining the rate of interest, if any, Maturity, and the date from which
interest, if any, shall accrue and except as may otherwise be provided in or
pursuant to such Board Resolution referred to above and (subject to Section
3.3) set forth in the Officer's Certificate referred to above or in any
indenture supplemental hereto. If any of the terms of the series are
established by action taken pursuant to a Board Resolution, a copy of the
Board Resolution shall be delivered to the Trustee at the same time as or
prior to the delivery of the Officer's Certificate setting forth the terms of
the series.
Notwithstanding any contrary terms of this Section 3.1, the
terms of the Securities of any series may provide, without limitation, that
the Securities shall be authenticated and delivered by the Trustee on original
issue from time to time upon telephonic or written order of Persons designated
in the Officer's Certificate or supplemental indenture and that such Persons
are authorized to determine, consistent with such Officer's Certificate or any
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such certificate or supplemental indenture. All
Securities of any one series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities.
Section 3.2. Denominations. Unless otherwise provided in or
pursuant to this Indenture, the principal of, any premium and interest on and
any Additional Amounts with respect to the Securities shall be payable in
Dollars. The Securities of each series shall be issuable only in fully
registered form without coupons in such denominations as shall be specified
pursuant to Section 3.1. In the absence of any such provision with respect to
the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 and any integral multiple thereof. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its President or
any Vice President, under its corporate seal reproduced thereon attested by its
Secretary or Assistant Secretary. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were the proper officers of the Company when their signatures
were affixed to such Securities shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and make such
Securities available for delivery. If the form or terms of the Securities of
the series have been established in or pursuant to one or more Board
Resolutions or indentures supplemental hereto as permitted by Sections 2.1 and
3.1, 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 6.1) shall be
fully protected in relying upon:
(a) an Opinion of Counsel to the effect that:
(i) if the form of such Securities has been
established by or pursuant to Board Resolution as permitted by
Section 2.1, that such form has been established in conformity
with the provisions of this Indenture;
(ii) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 3.1, that such terms have been established in conformity
with the provisions of this Indenture;
(iii) this Indenture has been qualified under the
Trust Indenture Act; and
(iv) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles and will entitle the Holders
thereof to the benefits of this Indenture; and
(b) an Officer's Certificate stating that, to the best
knowledge of the Person executing such certificate, no event which is, or
after notice or lapse of time would become, an Event of Default with
respect to any of the Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 3.1 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver an Opinion of
Counsel, Officer's Certificate or the Company Order otherwise required at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by, or on behalf of, the Trustee or by the
Authenticating Agent by manual signature. Such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written statement
(which need not comply with Section 1.2 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall not
be entitled to the benefits of this Indenture.
The Trustee shall not be required to authenticate or to cause an
Authentication Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Section 3.4. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute and deliver to the
Trustee, and, upon Company Order, the Trustee shall authenticate and make
available for delivery in the manner provided in Section 3.3, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers of the Company executing such Securities may determine, as evidenced
by their execution of such Securities. Such temporary Securities may be in
global form.
If temporary Securities of any series are issued, the Company
will cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities at the office or agency
of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series and of like tenor
of authorized denomination containing terms and provisions that are identical
to those of any temporary Securities. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series.
Section 3.5. Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company in
a Place of Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
The Company shall have the right to remove and replace from
time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable
times. There shall be only one Security Register for each series of
Securities.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company in a Place of Payment for
such series, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor containing
identical terms and provisions.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series containing identical terms
and provisions in any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
make available for delivery, the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or the Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not
involving any transfer.
Except as otherwise provided herein, the Company shall not be
required (i) to issue, register the transfer of or exchange Securities of any
series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of such series
selected for redemption under Section 11.3 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.1, any Global Security of any series shall be
exchangeable for definitive Securities only if: (i) such Depository is
unwilling, unable or ineligible to continue as Depository with respect to such
Global Security and a successor depository is not appointed by the Company
within 90 days or if at any time the Depository with respect to such Global
Security ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or (ii) the Company executes and delivers
to the Trustee a Company Order providing that such Global Security shall be
so exchangeable and the transfer thereof so registrable.
If the beneficial owners of interests in a Global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in the preceding sentence, then without unnecessary delay
but in any event not later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to
this Indenture, and of the same series, containing identical terms and in
aggregate principal amount equal to the principal amount of such Global
Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such Global Security shall be surrendered
from time to time by the Depository and in accordance with instructions given
to the Trustee and the Depository (which instructions shall be in writing but
need not be contained in or accompanied by an Officer's Certificate or be
accompanied by an Opinion of Counsel), as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or in part, for definitive Securities as
described above without charge.
The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered Global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such Global
Security to be exchanged, which shall be in the form of Securities, as shall be
specified by the beneficial owner thereof, provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of the same series to be redeemed and
ending at the close of business on the day of the mailing of a notice of
redemption of Securities.
Promptly following any such exchange in part, such global
Security shall be returned by the Trustee to such Depository in accordance
with the instructions of the Company referred to above. If a Security is
issued in exchange for any portion of a Global Security after the close of
business at the office or agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such office or agency on the next Interest Payment
Date, or (ii) any Special Record Date for such Security and before the opening
of business at such office or agency on the related proposed date for payment
of interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only
to the Person to whom interest in respect of such portion of such Global
Security shall be payable in accordance with the provisions of this Indenture.
Section 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee or if there shall
be delivered to the Company and the Trustee evidence to their satisfaction of
the destruction, loss or theft of any Security and (b) there shall be
delivered to the Company and the Trustee such indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and make available for delivery, in
lieu of any such mutilated, destroyed, lost or stolen Security, a new Security
of the same series containing identical terms and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute a
separate obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture, are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1 with respect to any
series of Securities, interest on and any Additional Amounts with respect to
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on, and any Additional Amounts with respect to, any
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit prior
to the date of the proposed payment. Such money when deposited will be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at the Holder's address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or
the Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Company, interest on Securities may be paid by
mailing a check to the address of the Person entitled thereto as such address
shall appear in the Security Register or by transfer to an account maintained
by the payee with a bank located in the United States.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8. Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to
Sections 3.5 and 3.7) interest on and any Additional Amounts with respect to
such Security and for all other purposes whatsoever, whether or not any
payment with respect to such Security shall be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security
held on its behalf by a Depository shall have any rights under this Indenture
with respect to such Global Security, and such Depository may be treated by
the Company, the Trustee, and any agent of the Company or the Trustee as the
owner of such Global Security for all purposes whatsoever. None of the
Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 3.9. Cancellation. All Securities surrendered for
payment, redemption, registration of transfer, exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever and may deliver to the Trustee (or
to an Authenticating Agent for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order, provided, however, that the
Trustee shall not be required to destroy such canceled Securities.
Section 3.10. Computation of Interest. Except as otherwise
specified pursuant to Section 3.1 for Securities of any series, interest on
the Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Securities
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE 4
Satisfaction and Discharge
Section 4.1. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect with
respect to any series of Securities specified in such Company Request (except
as to rights of registration of transfer or exchange of Securities), and the
Trustee on receipt of the Company Request, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series, when:
(a) either
(i) all Securities of such series theretofore
authenticated and delivered (other than (A) Securities of such
series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.6 and (B)
Securities of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to
the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered
to the Trustee for cancellation:
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest and any Additional Amounts to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be.
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officer's
Certificate or an Opinion of Counsel, stating that all conditions precedent
herein relating to the satisfaction and discharge of this Indenture with
respect to such Securities have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested
to do so with respect to Securities of such series as to which it is Trustee
and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Securities of any series, the obligations of the
Company to the Trustee under Section 6.7, the obligations of the Company to any
Authenticating Agent under Section 6.14 and, if money shall have been
deposited with the Trustee pursuant to subclause (ii) of clause (a) of this
Section, the obligations under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, and the
obligation to pay Additional Amounts, if any, with respect to such Securities
as contemplated by Section 10.6 (but only to the extent that any Additional
Amounts payable with respect to such Securities exceed the amount deposited
in respect of such Additional Amounts pursuant to Section 4.1(a)(ii)), shall
survive.
Section 4.2. Application of Trust Money. Subject to the
provisions of the penultimate paragraph of Section 10.3, all money and
Government Obligations deposited with the Trustee pursuant to Section 4.1 and
Article 13 shall be held in trust and applied by it, in accordance with the
provisions of the Securities of the series for which such deposit was made and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), interest and Additional Amounts for whose payment such money and
Government Obligations has been deposited with the Trustee; but such money and
Government Obligations need not be segregated from other funds except to the
extent required by law.
ARTICLE 5
Remedies
Section 5.1. Events of Default. "Event of Default," wherever
used herein with respect to the Securities of any series, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officer's Certificate establishing the terms of such series
pursuant to this Indenture:
(a) default in the payment of any interest upon any Security
of such series when it becomes due and payable, and continuance of such
default for a period of 30 days;
(b) default in the payment of the principal of (or premium, if
any, on) any Security of such series at its Maturity;
(c) default in the performance, or breach, of any covenant,
agreement or warranty of the Company in this Indenture (other than a covenant,
agreement or warranty a default in whose performance is elsewhere in this
Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than such
series) and continuance of such default for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 50% in principal
amount of the Outstanding Securities of such series a written notice
specifying such default and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(d) default in the deposit of any sinking fund payment when
and as due by the terms of a Security of such series;
(e) the entry by a court having jurisdiction of a decree or
order adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under federal bankruptcy law or any other
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days;
(f) the commencement by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the commencement
of bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under federal
bankruptcy law or any other applicable federal or state law, or the consent by
it to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the making by it of a general
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(g) any other Event of Default provided pursuant to Section 3.1
with respect to Securities of such series.
Section 5.2. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in the Event of Default
described in Section 5.1, clauses (a), (b), (c), (d) and (g) above, the
Trustee or the Holders of not less than 50% in principal amount of the
Outstanding Securities of such series may declare the principal amount of all
the Securities of such series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount shall become immediately due and
payable. If an Event of Default specified in clauses (e) or (f) of Section
5.1 hereof occurs, the principal amount of all Outstanding Securities of each
series shall become due and payable without any declaration or other act on
the part of the Trustee or the Holders of Securities of any series.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before the Stated
Maturity thereof, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on and any
Additional Amounts with respect to all Securities of such series;
(ii) the principal of (and premium, if any, on) any Securities
of such series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities of such
series and any Additional Amounts;
(iii) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue interest or Additional Amounts at the
rate borne by the Securities of such series; and
(iv) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(b) all Events of Default with respect to the Securities of
such series, other than the non-payment of the principal of Securities of such
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 5.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any
Securities when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Securities at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on
any overdue interest, at the rate borne by the Securities and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sum so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of the Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal (and premium, if any) or interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest and Additional Amounts owing
and unpaid in respect of the Securities and to file such other papers and
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 5.5. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any),
interest or Additional Amounts, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.7;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), interest and
Additional Amounts on the Securities in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on
such Securities for principal (and premium, if any),
interest and Additional Amounts, respectively; and
Third: To the payment of the remainder, if any, to the Company
or any other Person lawfully entitled thereto.
Section 5.7. Limitation on Suits. No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than 50% in principal amount of
the Outstanding Securities of such series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceedings;
and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such series.
It being understood and intended that no one or more Holders of
Securities shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the right of any other such Holders of Securities of such series, or to obtain
or to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all such Holders of Securities.
Section 5.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any,
on) and (subject to Section 3.7) interest on, and any Additional Amounts with
respect to, such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment and such rights shall
not be impaired without the consent of such Holder.
Section 5.9. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series,
provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or with such Securities;
(b) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(c) subject to Section 6.1, the Trustee need not take any
action which might be prejudicial to the Holders of such series not
consenting.
Section 5.13. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default:
(a) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(b) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with
respect to such series, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 5.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on any Security on or after the respective
Stated Maturities expressed in such Security (or, in the case of redemption,
on or after the Redemption Date).
Section 5.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6
The Trustee
Section 6.1. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct; except that:
(i) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(iv) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 6.2. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit by mail to all Holders of Securities of
such series, as their names and addresses appear in the Security Register,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case
of a default in the payment of the principal of (or premium, if any) or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided, further, that in the case
of any default of the character specified in Section 5.1(c) with respect to
the Securities of such series no such notice to Holders shall be given until
at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities
of such series.
Section 6.3. Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights of powers conferred
upon it by this Indenture; and
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
Section 6.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assume no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 6.5. May Hold Securities. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Section 6.13, may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
Section 6.6. Money Held in Trust. Except as otherwise provided
herein, money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 6.7. Compensation and Reimbursement. The Company
agrees:
(a) to pay to the Trustee from time to time such
compensation as shall be agreed in writing from time to time between the
Company and the Trustee for all services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim, whether asserted by the Company, or any
Holder or any other Person, or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent
that any such loss, liability, damage, claim or expense was due to the
Trustee's negligence or bad faith.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.7, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or tenders services in
connection with an Event of Default specified in Section 5.1(e) or Section
5.1(f), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
Section 6.8. Intentionally Left Blank.
Section 6.9. Corporate Trustee Required; Eligibility. (a)
There shall at all times be a Trustee hereunder which shall:
(i) be a Corporation organized and doing business
under the laws of the United States of America, any State thereof
or the District of Columbia authorized under such laws to
exercise corporate trust powers;
(ii) be eligible under Section 310(a) of the Trust
Indenture Act to act as trustee under an indenture qualified
under the Trust Indenture Act; and
(iii) have a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
federal or state authority.
If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
(b) The following Indenture shall be considered specifically
described herein for purposes of clause (i) of the proviso contained in
Section 310(b)(1) of the Trust Indenture Act:
Section 6.10. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may at the
expense of the Company petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by the Company or by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered to
the Trustee, and to the Company in the case of an Act of the Holders. If an
instrument of acceptance by a successor Trustee shall not have been delivered
to the Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(d) If at any time:
(i) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to the Securities after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months;
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (A) the
Company may remove the Trustee with respect to all Securities or
the Securities of such series, or (B) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of such Holder and all other
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee.
(iv) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities
of one or more series, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of
that or those Series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series).
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of 75% in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and supersede
the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been
a bona fide Holder of a Security of such series for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(v) The Company shall give notice of each
resignation and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate
Trust Office.
Section 6.11. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which,
(i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates,
(ii) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and
(iii) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more
than one Trustee.
It being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such
Trustee.
Upon the execution and delivery of such supplemental indenture,
the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such a acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any Corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities.
Section 6.13. Preferential Claims. Reference is made to
Section 311 of the Trust Indenture Act. For purposes of Section 311(b)(4) and
(6) of such Act:
(i) "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
seven days after delivery of the goods or securities in currency
or in checks or other orders drawn upon banks or bankers and
payable upon demand; and
(ii) "self-liquidating paper" means any draft,
xxxx of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, xxxx of exchange,
acceptance or obligation.
Section 6.14. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issuance, exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in the
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and
shall at all times be a Corporation organized and doing business under the laws
of the United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to all or
substantially all the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
that such Corporation shall be otherwise eligible under this Section, without
the execution or filing of any paper or any further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30
days' written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provision of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security
Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By _________________________________
As Authenticating Agent
By _________________________________
Authorized Signatory
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
with respect to the Securities of each series:
(a) semi-annually, not later than each Interest Payment Date
for such series (or, in the case of any series not having semi-annual Interest
Payment Dates, semi-annually, not later than the dates determined pursuant to
Section 3.1 for such series) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of the
preceding Regular Record Date (or as of such other date determined pursuant to
Section 3.1 for such series) therefor, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished; provided, however, that so long as the Trustee is the
Security Registrar no such list shall be required to be furnished.
Section 7.2. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of the Securities of each
series contained in the most recent list furnished to the Trustee as provided
in Section 7.1 and the names and addresses of such Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any
list of the Holders of Securities of any series furnished to it as provided in
Section 7.1 upon receipt of a new list of such Holders.
(b) If three or more Holders of Securities of any series
(herein referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned
a Security of such series for a period of at least six months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders of Securities of such series with
respect to their rights under this Indenture or under the Securities of
such series and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at
its election, either:
(i) afford such applicants access to the
information preserved at the time by the Trustee in accordance
with Section 7.2(a) with respect to the Securities of such
series, or
(ii) inform such applicants as to the approximate
number of Holders of Securities of such series whose names and
addresses appear in the information preserved at the time by the
Trustee in accordance with Section 7.2(a), and as to the
approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name and
address appear in the information preserved at the time by the Trustee in
accordance with Section 7.2(a) a copy of the form or proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless
within five days after such tender the Trustee shall mail to such applicants
and file with the Commission, together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interest of the Holders or would be
in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter
an order refusing to sustain any of such objections or if, after the entry of
an order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting
their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.2(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 7.2(b).
Section 7.3. Reports by Trustee.
(a) Within 60 days after July 15 of each year commencing with
the year 1999, the Trustee shall transmit by mail to all Holders, as their
names and addresses appear in the Security Register, such brief report
dated as of such July 15, if any, as may be required by Section 313(a) of
the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when any Securities are listed on any
stock exchange, or of any delisting thereof.
Section 7.4. Reports by Company. The Company shall:
(a) notify the Trustee, within 15 days after the Company has
filed with the Commission, copies of the annual reports and of the information,
documents and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (a) and
(b) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1. Company May Consolidate, Etc. on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Company with or into any other Person, or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any conveyance,
transfer or lease of the property of the Company as an entirety or
substantially as an entirety, to any Person, provided that:
(a) in case the Company shall consolidate with or merge into
another Corporation or convey, transfer or lease its properties and assets as,
or substantially as, an entirety to any Person, the Corporation formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer, or lease the properties and assets of the Company,
as, or substantially as, an entirety shall be a Corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and premium,
if any), interest on and any Additional Amounts with respect to all the
Securities and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no
Event of Default, or event which after notice or lapse of time, or both,
would become an Event of Default, shall have occurred and be continuing;
and
(c) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 8.2. Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
Corporation or any conveyance, transfer or lease of the properties and assets
of the Company as, or substantially as, an entirety to any Person in accordance
with Section 8.1, the successor Corporation formed by such consolidation or
into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such successor Corporation has been named as the Company herein, and
thereafter, except in the case of a lease to another Person, the predecessor
Corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 9
Supplemental Indentures
Section 9.1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities;
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and, if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company;
(c) to add any additional Events of Default with respect to
Securities of any or all series;
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision;
(e) to secure the Securities of any or all series;
(f) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions
arising under this Indenture, provided such action shall not adversely
affect the interests of the Holders of Securities of any series in any
material respect;
(g) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
(h) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1;
(i) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b);
(j) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of Securities, as herein set forth;
(k) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Article 13, provided
that no such supplement shall materially adversely affect the interest of
the Holders of any Securities then Outstanding; or
(l) to amend or supplement any provision contained herein or
in any supplemental indenture, provided that no such amendment or
supplement shall materially adversely affect the interest of the Holders of
any Securities then Outstanding.
Section 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any such Security, or reduce the principal amount
thereof or any interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or change any Place of Payment
where, or the currency in which, any such Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date);
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of those
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(c) modify any of the provisions of this Section or Section
5.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or the provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 9.6. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE 10
Covenants
Section 10.1. Payment of Principal, any Premium, Interest and
Additional Amounts. The Company covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
with respect to the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 10.2. Maintenance of Office or Agency. The Company
will maintain in each Place of Payment for any series of Securities an office
or agency where Securities of such series may be presented or surrendered for
registration or transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of such series and this Indenture may
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, if and so long as the Securities of any series (i)
are denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one exchange rate agent.
Section 10.3. Money for Securities Payments to be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, on or before each due date of the principal
of or interest on any Securities of such series, deposit with a Paying Agent a
sum sufficient to pay the principal (or premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company hereby designates the Trustee as the initial Paying
Agent. Whenever the Company shall appoint a Paying Agent other than the
Trustee, it will cause such Paying Agent for any series of Securities to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
such series; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability
with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
received by the Trustee (or another trustee satisfying the requirements of
Section 6.9) in respect of Government Obligations deposited with the Trustee
(or such other trustee) pursuant to Section 13.4, or then held by the Company,
in trust for the payment of the principal of (and premium, if any) or interest
on any Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust. The Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease.
The Trustee or such Paying Agent, before being required to make
any such repayment, may, at the expense of the Company publish, in the English
language, in a newspaper customarily published on each Business Day and of
general circulation in the City of New York, New York, or to be mailed to such
Holder or both, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the earlier
of the date of such publication or such mailing, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 10.4. Corporate Existence. Subject to Article 8, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of its business and that the loss thereof is not disadvantageous in
any material respect to any Holder.
Section 10.5. Statement as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, an
Officer's Certificate, stating as to each signer thereof that he or she is
familiar with the affairs of the Company and whether or not to such officer's
knowledge the Company is in compliance (without regard to any period of grace
or requirement of notice) with all conditions and covenants of this Indenture.
The officer executing such certificate shall be the Company's principal
executive, financial or accounting officer and such certificate need not comply
with Section 314(e) of the Trust Indenture Act.
Section 10.6. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the Company agrees to
pay to the Holder of any such Security Additional Amounts as provided in or
pursuant to this Indenture or such Securities. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of or any
premium or interest on, or in respect of, any Security of any series or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express
mention of the payment of Additional Amounts (if applicable) in any provision
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture
or the Securities of the applicable series, if the Securities of a series
provide for the payment of Additional Amounts, at least 10 days prior to the
first Interest Payment Date with respect to such series of Securities (or if
the Securities of such series shall not bear interest prior to Maturity, the
first day on which a payment of principal is made), and at least 10 days prior
to each date of payment of principal or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officer's
Certificate, the Company shall furnish to the Trustee and the Paying Agent, if
other than the Trustee, an Officer's Certificate instructing the Trustee and
such Paying Agent whether such payment of principal of an premium, if any, or
interest on the Securities of such series shall be made to Holders of
Securities of such series who are United States aliens without withholding for
or on account of any tax, assessment or other governmental charge described in
the Securities of such series. If any such withholding shall be required,
then such Officer's Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities, and
the Company agrees to pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities.
Section 10.7. Calculation of Original Issue Discount. The
Company shall file with the Trustee promptly at the end of each calendar year
(a) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities
as of the end of such year and (b) such other specific information relating to
such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time.
ARTICLE 11
Redemption of Securities
Section 11.1. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified pursuant to
Section 3.1 for Securities of any series) in accordance with this Article.
Section 11.2. Election to Redeem; Notice to Trustee. In case
of any redemption of Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed
and, if applicable, of the tenor of the Securities to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
Section 11.3. Selection by Trustee of Securities to be
Redeemed. If less than all the Securities of any series are to be redeemed
(unless all of the Securities of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series subject to such redemption and not previously called for
redemption, pro rata, by lot or by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series and tenor or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series. If less than all of the
Securities of such series and of a specified tenor are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
Section 11.4. Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Securities designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Securities of any Series
and tenor are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the
case;
(g) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed; and
(h) the CUSIP Number or the Euroclear or the Cedel Bank
reference numbers of such Securities, if any (or any other numbers used by
a Depository to identify such Securities).
Notice of redemption of Securities to be redeemed shall be
given by the Company or, on Company Request, by the Trustee at the expense of
the Company.
Section 11.5. Deposit of Redemption Price. On or before 10:00
a.m., New York City time, any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.3) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
Section 11.6. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that installments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular or Special Record Dates according to
their terms and the provisions of Section 3.7.
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 borne by the
Security.
Section 11.7. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at an office or agency of
the Company at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or the Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security without service charge, a new Security
or Securities of the same series and of like tenor of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the Security
so surrendered.
If a Global Security is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depository,
without service charge, a new Global Security in a denomination equal to and
in exchange for the unredeemed portion of the principal of the Global Security
so surrendered.
ARTICLE 12
Intentionally Left Blank
ARTICLE 13
Defeasance and Covenant
Section 13.1. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If pursuant to Section 3.1
provision is made for either or both of (a) defeasance of the Securities of a
series under Section 13.2 or (b) covenant defeasance of the Securities of a
series under Section 13.3 to apply to Securities of any series, then the
provisions of such Section or Sections, as the case may be, together with the
other provisions of this Article 13, shall be applicable to the Securities of
such series, and the Company may at its option, at any time, with respect to
the Securities of such series, elect to have either Section 13.2 (if
applicable) or Section 13.3 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set forth below
in this Article 13.
Section 13.2. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on the date the conditions set forth
below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Outstanding Securities of such
series to receive, solely from the trust fund described in Section 13.4 and
as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on and Additional
Amounts, if any, with respect to, such Securities when such payments are
due;
(b) the Company's obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 6.7, 10.2, 10.3 and 10.6 (but only
to the extent that any Additional Amounts payable exceed the amount
deposited in respect of such Additional Amounts pursuant to Section 13.4(a)
below);
(c) the rights, powers, trusts, duties and immunities and other
provisions in respect of the Trustee hereunder; and
(d) this Article 13.
Subject to compliance with this Article 13, the Company may
exercise its option under this Section 13.2 notwithstanding the prior exercise
of its option under Section 13.3 with respect to the Securities of such series.
Section 13.3. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section, the Company shall be released
from its obligations under Sections 8.1, 10.5, 5.1(c) (as to Sections 8.1 and
10.5), 5.1(e), 5.1(f) and 5.1(g) (if Section 5.1(g) is specified as applicable
to the Securities of such series) with respect to the Outstanding Securities
of such series on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of such series, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of
any reference in any such Section to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall
be unaffected thereby. Following a covenant defeasance, payment of the
Securities of such series may not be accelerated because of an Event of
Default specified above in this Section 13.3.
Section 13.4. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 13.2 or
Section 13.3 to the Outstanding Securities of such series.
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.9 who shall agree to comply with the provisions
of this Article 13 applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (i) an amount in Dollars or in such Foreign Currency in which
such Securities are then specified as payable at Stated Maturity, or (ii)
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, on
the due date of any payment, money in an amount, or (iii) a combination
thereof, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (A) the principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Stated Maturity of such
principal or installment of principal or interest and (B) any mandatory
sinking fund payments or analogous payments applicable to the Outstanding
Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities. Before such a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of any series of Securities
at a future date in accordance with any redemption provisions contained in
the Supplemental Indenture relating to such series, which shall be given
effect in applying the foregoing.
(b) No Event of Default or event with which notice of lapse
of time or both would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit and, with respect to defeasance only, at any time during the period
ending on the 123rd day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period).
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting interest for
purposes of the Trust Indenture Act with respect to any securities of the
Company.
(d) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or by
which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national securities
exchange under the Securities Exchange Act of 1934, as amended, to be deleted.
(f) In the case of an election under Section 13.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not
occurred.
(g) In the case of an election under Section 13.3, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(h) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to Section
3.1.
(i) The Company shall have delivered to the Trustee an
Officer's Certificate or an Opinion of Counsel, stating that all conditions
precedent provided for in the Indenture relating to either the defeasance
under Section 13.2 or the covenant defeasance under Section 13.3 (as the
case may be) have been complied with.
Section 13.5. Deposited Money and Government Obligations to be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
the last paragraph of Section 13.3, all money and Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee -- collectively, for purposes of this Section 13.5, the
"Trustee") pursuant to Section 3.10 in respect of the Outstanding Securities
of such series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but not including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or
any Security, if after a deposit referred in Section 13.2 has been made, (a)
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 3.1 or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 13.2 has been made in respect of such Security, or (b) a Conversion
Event occurs in respect of the Foreign Currency in which the deposit pursuant
to Section 13.2 has been made, the indebtedness represented by such Security
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any), and interest, if
any, on and Additional Amounts, if any, with respect to, such Security as the
same becomes due out of the proceeds yielded by converting (from time to time
as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in which such
Security becomes payable as a result of such election or Conversion Event
based on (i) in the case of payments made pursuant to clause (a) above, the
applicable market exchange rate for such Currency in effect on the second
Business Day prior to each payment date, or (ii) with respect to a Conversion
Event, the applicable market exchange rate for such Foreign Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 13.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article 13 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
13.4 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent defeasance or covenant defeasance.
ARTICLE 14
Sinking Funds
Section 14.1. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise permitted or required in or
pursuant to this Indenture or any Security of such series issued pursuant to
this Indenture.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred to as
an "optional sinking fund payment." If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 14.2. 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 and this Indenture.
Section 14.2. Satisfaction of Sinking Fund Payments with
Securities. The Company may (a) deliver Outstanding Securities of a series
(other than any of such Securities previously called for redemption) and (b)
apply as a credit Securities of such series which have been redeemed either at
the election of the Company pursuant to the terms of such series of
Securities, or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment required to be
made pursuant to the terms of such Securities, as provided by the terms of
such Securities, provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
required sinking fund payment shall be reduced accordingly.
Section 14.3. Redemption of Securities for Sinking Fund. Not
less than 75 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
such series pursuant to the terms of such series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 14.2, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, hereof and will also
deliver to the Trustee any Securities to be so delivered. Not less than 45
days prior to each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 and cause notice of the redemption thereof to be
given the name of and at the expense of the Company in the manner provided in
Section 11.4. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.6 and 11.7.
ARTICLE 15
Securities in Foreign Currencies
Section 15.1. Applicability of Article. Whenever this
Indenture provides for (a) any action by, or the determination of any of the
rights of, Holders of Securities of any series in which not all of such
Securities are denominated in the same Currency, or (b) any distribution to
Holders of Securities, in the absence of any provision to the contrary in this
Indenture or the Securities, any amount in respect of any Security denominated
in a Currency other than Dollars shall be treated for any such action or
distribution as that amount of Dollars that could be obtained for such amount
on such reasonable basis of exchange and as of the record date with respect to
Securities of such series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Company may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
XXXXXX & XXXXX CORPORATION,
Issuer
By _______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By _______________________________________
Name:
Title:
SCHEDULE I
XXXXXX & XXXXX CORPORATION
AND
THE BANK OF NEW YORK,
as Trustee
_______________________________________
Supplemental Indenture
No. __
Dated as of _____________, ______
_______________________________________
___% Notes due __________________, ______
SUPPLEMENTAL INDENTURE NO. ___, dated as of __________, _____
between Xxxxxx & Xxxxx Corporation, a Tennessee Corporation (the "Company")
and The Bank of New York, a New York banking corporation (herein called the
"Trustee") as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company and the Trustee have executed and delivered an
Indenture dated as of August 1, 1998, as amended or supplemented (the
"Indenture") to provide for the issuance from time to time of the Company's
Securities.
Sections 2.1 and 3.1 of the Indenture provide that the form and
terms of Securities of any series may be established pursuant to an indenture
supplemental to the Indenture.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and under the Indenture
and duly issued by the Company and to make this Supplemental Indenture No. ___
a valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, this Indenture WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders hereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the holders of the Securities of the series
hereby established, as follows:
ARTICLE 1
Relation to the Indenture; Definitions and Other Provisions of
General Application
Section 1.1. Relation to the Indenture. This Supplemental
Indenture No. ___ constitutes an integral part of the Indenture.
Section 1.2. Definitions and Other Provisions of General
Application. For all purposes of this Supplemental Indenture No. ___ unless
otherwise specified herein:
(a) all terms defined in this Indenture which are used and not
otherwise defined herein shall have the meanings they are given in the
Indenture; and
(b) the provisions of general application stated in
Section 1.1 of the Indenture shall apply to this Supplemental Indenture No.
__, except that the words "herein," "hereof," "hereto" and "hereunder" and
other words of similar import refer to this Supplemental Indenture as a
whole and not to the Indenture or any particular Article, Section or other
subdivision of the Indenture or this Supplemental Indenture No. ___.
ARTICLE 2
The Series of Notes
Section 2.1. Title. There shall be a series of Securities
designated the "___% Notes due __________, __________" (the "Notes").
Section 2.2. Principal Amount. The aggregate principal amount
of the Notes which may be authenticated and delivered under this Supplemental
Indenture shall not exceed $__________ (except for Notes which may be
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 3.4, 3.5, 3.6, 9.6 or
11.7 of the Indenture).
Section 2.3. Maturity. The date on which the principal of the
Notes shall be payable shall be __________.
Section 2.4. Interest. [The Notes shall bear interest at the
rate of [ ]% per annum. Interest shall accrue from __________, _____ or
from the most recent Interest Payment Date to which interest has been paid or
provided for. Accrued interest shall be payable on _________, _____ and on
each _____ and _____ thereafter, to the persons in whose names the Notes are
registered at the close of business on the preceding _____ or _____, as the
case may be.]
[Insert other interest provisions if necessary]
Section 2.5. Place of Payment. [The Place of Payment for the
Notes shall be at the Corporate Trust office of the Trustee at ____________ or
such other office of the Paying Agent as the Paying Agent may reasonably
request by notice to the Company and the Trustee (if the Paying Agent is not
the Trustee).
Section 2.6. Redemption.
[Insert redemption terms]
The provisions of Article 13 of the Indenture [shall/shall not]
apply to the Notes.
Section 2.7. Intentionally Left Blank.
Section 2.8. Form of Notes. The Notes shall be in the form of
Exhibit A attached hereto.
Section 2.9. Currency.
[Insert currency terms.]
Section 2.10. Sinking Funds.
[Insert sinking fund terms.]
Section 2.11. Additional Amounts. The provisions of Section
10.6 of the Indenture [shall/shall not] apply to the Notes.
ARTICLE 3
Miscellaneous Provisions
Section 3.1. Supplemental Indenture. The Indenture, as
supplemented and amended by this Supplemental Indenture No. __, is in all
respects hereby adopted, ratified and confirmed.
Section 3.2. Counterparts. This Supplemental Indenture No. __
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. __ to be duly executed, as of the day and year
first written above.
XXXXXX & XXXXX CORPORATION
By _______________________________________
Name:
Title:
THE BANK OF NEW YORK
By _______________________________________
Name:
Title:
Exhibit A
to Indenture
REGISTERED
No.
PRINCIPAL AMOUNT: $ __________________
CUSIP NO.
XXXXXX & XXXXX CORPORATION
_____% Note due ______________, ______
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITORY") (55
XXXXX XXXXXX, XXX XXXX, XXX XXXX), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
XXXXXX & XXXXX CORPORATION, a Tennessee corporation, (the
"Company" which term includes any successor Person under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
CEDE & CO.
C/O THE DEPOSITORY TRUST COMPANY
00 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
or registered assigns, the principal sum of
DOLLARS
on , (the "Maturity Date") and to pay interest thereon from
, or from the most recent "Interest Payment Date" to
which interest has been paid or duly provided for, semi-annually on
and of each year, commencing , , and on
the Maturity Date, at the rate of % per annum, until the principal
hereof is paid or duly provided for. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
the Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the "Regular
Record Date" for such interest, which shall be the or
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee referred to on the reverse hereof, notice of which
shall be given to Holders of Notes of this series not less than 10 days prior
to such Special Record Date, or be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes of this series may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The Company will at all times appoint and maintain a Paying
Agent (which may be the Trustee) authorized by the Company to pay the
principal of and interest on any Notes of this series on behalf of the Company
and having an office or agency in New York, New York and in such other cities,
if any, as the Company may designate in writing to the Trustee (the "Place of
Payment") where Notes of this series may be presented or surrendered for
payment and where notices, designations or requests in respect for payments
with respect to Notes of this series may be served. The Company has initially
appointed The Bank of New York as such Paying Agent.
Interest payments on this Note will be computed and paid on the
basis of a 360-day year of twelve 30-day months. Interest payable on this
Note on any Interest Payment Date and on the Maturity Date will include
interest accrued from and including the most recent Interest Payment Date to
which interest has been paid or duly provided for (or from and including
, , if no interest has been paid on this Note) to but excluding
such Interest Payment Date or the Maturity Date, as the case may be.
If any Interest Payment Date or the Maturity Date falls on a
day that is not a Business Day (as defined below), principal or interest
payable with respect to such Interest Payment Date or Maturity Date, as the
case may be, will be paid on the next succeeding Business Day with the same
force and effect as if it were paid on the date such payment was due, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date or the Maturity Date, as the case may be. "Business
Day" means any day other than Saturday, Sunday or other day on which banking
institutions in New York are obligated or authorized by law to close.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
XXXXXX & XXXXX CORPORATION
By:_______________________________________
Name:
Title:
Attest:
_______________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK
As Trustee
By:_______________________________________
Authorized Signatory
Dated:____________________________________
XXXXXX & XXXXX CORPORATION
____% Note due _____________, ______
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), limited in aggregate principal amount to $
(except as otherwise provided in the Indenture), issued and to be
issued as one series of debt securities of the Company under an Indenture,
dated as of August 1, 1998, as amended and supplemented from time to time (the
"Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Notes and of the terms upon which the Notes are, and are to be, authenticated
and delivered. In addition to the Notes, the Company is authorized to issue
an unlimited amount of debt securities in one or more series (herein
collectively with the Notes called the "Debt Securities") under the Indenture.
This Note is not redeemable at the option of the Company or at
the option of the Holder prior to the Maturity Date [and is not subject to any
sinking fund].
In case an Event of Default with respect to the Notes of this
series shall occur and be continuing, the principal of the Notes of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of
(i) the entire indebtedness of this Note or (ii) certain respective covenants
and Events of Default with respect to this Note, in each case upon compliance
with certain conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Debt
Securities or each series to be affected under the Indenture at any time by
the Company and the Trustee with the consent of a majority in principal amount
of each series of Debt Securities to be affected if less than all series are
to be affected by such modification or amendment. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Debt Securities of each series at the time Outstanding, on behalf of
the Holders of all Debt Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note or Notes issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, places and rate, and in the currency herein prescribed.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in the Place of Payment, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar, duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Notes of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations
herein and therein set forth, Notes of this series issued in definitive
registered form are exchangeable for the same aggregate principal amount of
Notes of this series and of like tenor and authorized denominations, as
requested by the Holder surrendering the same.
The Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple of $1,000
in excess thereof.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement
of the Corporation in the Indenture or any indenture supplemental thereto or in
any Note, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, of the Corporation or of any successor Corporation, either directly or
through the Corporation or any successor Corporation, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof.
At the option of the Corporation and upon satisfaction of
certain conditions specified in the Indenture, either (a) the Corporation
shall be deemed to have paid and discharged the entire indebtedness on the
Notes or (b) the Corporation need not comply with certain covenants contained
in the Indenture, in each case upon the deposit by the Corporation with the
Trustee in trust for the Holders of the Notes of an amount of funds or
obligations issued or guaranteed by the United States of America sufficient to
pay and discharge upon the stated maturity thereof the entire indebtedness
evidenced by the Notes, all as provided in the Indenture .
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ______________ Custodian ______________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assigns(s) and transfer(s)
unto__________________________________________________________________________
______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_____________________________
/____________________________/
__________________________________________________________________
__________________________________________________________________
(Please Print or Type Name and Address
Including Postal Zip Code of Assignee)
__________________________________________________________________
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
__________________________________________________________________
__________________________________________________________________
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:_____________________________
Signature Guaranteed
__________________________________
NOTICE: Signature must be guaranteed NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within Note in every particular,
without alteration or enlargement or
any change whatever.
