Exhibit 4.6
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L-3 COMMUNICATIONS
ISSUER
L-3 COMMUNICATIONS HOLDINGS, INC.
GUARANTOR
and
THE BANK OF NEW YORK
TRUSTEE
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INDENTURE
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DATED AS OF ___________ __, 2002
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FORM OF L-3 COMMUNICATIONS INDENTURE
Exhibit 4.6
L-3 COMMUNICATIONS CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of _______ __, 2002
TRUST INDENTURE ACT SECTION INDENTURE SECTION
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ss.310(a)(1)....................................... 6.09
(a)(2)....................................... 6.09
(a)(3)....................................... Not Applicable
(a)(4)....................................... Not Applicable
(b).......................................... 6.08
6.10
ss.311(a).......................................... 6.13(a)
(b).......................................... 6.13(b)
ss.312(a).......................................... 7.01
7.02(a)
(b).......................................... 7.02(b)
(c).......................................... 7.02(c)
ss.313(a).......................................... 7.03(a)
(b).......................................... 7.03(b)
(c).......................................... 7.03(a)
7.03(b)
(d).......................................... 7.03(c)
ss.314(a).......................................... 7.04
(c)(1)....................................... 1.02
(c)(2)....................................... 1.02
(c)(3)....................................... Not Applicable
(d).......................................... Not Applicable
(e).......................................... 1.02
ss.315(a).......................................... 6.01(a)
(b).......................................... 6.02
(c).......................................... 6.01(b)
(d).......................................... 6.01(c)
(d)(1)....................................... 6.01(c)
(d)(2)....................................... 6.01(c)(2)
(d)(3)....................................... 6.01(c)(3)
(e).......................................... 5.09
ss.316(a).......................................... 5.08
(a)(1)(A).................................... 5.08
(a)(1)(B).................................... 5.02
5.08
(a)(2)....................................... Not Applicable
(b).......................................... 5.05
ss.317(a)(1)....................................... 5.03
(a)(2)....................................... 5.03
(b).......................................... 10.03
ss.318(a).......................................... 1.07
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
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PARTIES..................................................................................................................1
RECITALS.................................................................................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...................................................1
SECTION 1.01. Definitions ........................................................................................1
"Act" ............................................................................................................2
"Affiliate" ......................................................................................................2
"Authenticating Agent" ...........................................................................................2
"Board of Directors" .............................................................................................2
"Board Resolution" ...............................................................................................2
"Business Day" ...................................................................................................2
"Commission" .....................................................................................................2
"Company" ........................................................................................................2
"Company Request" and "Company Order" ............................................................................3
"Corporate Trust Office" .........................................................................................3
"Covenant Defeasance Option" .....................................................................................3
"Default" ........................................................................................................3
"Defaulted Interest" .............................................................................................3
"Discharged" .....................................................................................................3
"Eligible Guarantors" ............................................................................................3
"Event of Default" ...............................................................................................3
"Exchange Act" ...................................................................................................3
"Global Security" ................................................................................................3
"Guarantee" ......................................................................................................3
"Guarantor" ......................................................................................................3
"Holder" .........................................................................................................3
"Indenture" ......................................................................................................3
"interest" .......................................................................................................4
"Interest Payment Date" ..........................................................................................4
"Legal Defeasance Option" ........................................................................................4
"Maturity" .......................................................................................................4
"Officer" ........................................................................................................4
"Officers' Certificate" ..........................................................................................4
"Opinion of Counsel" .............................................................................................4
"Original Issue Discount Security" ...............................................................................4
"Outstanding" ....................................................................................................4
"Parent Guarantor" ...............................................................................................5
"Paying Agent" ...................................................................................................5
"Person" .........................................................................................................5
"Predecessor Security" ...........................................................................................5
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"Redemption Date" ................................................................................................5
"Redemption Price" ...............................................................................................5
"Regular Record Date" ............................................................................................5
"Responsible Officer" ............................................................................................6
"Securities" .....................................................................................................6
"Security Register" and "Security Registrar" .....................................................................6
"Significant Subsidiary" .........................................................................................6
"Special Record Date" ............................................................................................6
"Stated Maturity" ................................................................................................6
"Subsidiary" .....................................................................................................6
"Trustee" ........................................................................................................6
"Trust Indenture Act" ............................................................................................6
"United States" ..................................................................................................6
"U.S. Depositary" ................................................................................................7
"U.S. Government Obligations" ....................................................................................7
"Voting Stock" ...................................................................................................7
"Yield to Maturity" ..............................................................................................7
SECTION 1.02. Compliance Certificates and Opinions ...............................................................7
SECTION 1.03. Form of Documents Delivered to Trustee .............................................................8
SECTION 1.04. Acts of Holders ....................................................................................8
SECTION 1.05. Notices, etc., to Trustee, Company and Parent Guarantor ............................................9
SECTION 1.06. Notice to Holders; Waiver ..........................................................................9
SECTION 1.07. Conflict with Trust Indenture Act .................................................................10
SECTION 1.08. Effect of Headings and Table of Contents ..........................................................10
SECTION 1.09. Successors and Assigns ............................................................................10
SECTION 1.10. Separability Clause ...............................................................................10
SECTION 1.11. Benefits of Indenture .............................................................................10
SECTION 1.12. Governing Law .....................................................................................10
SECTION 1.13. Legal Holidays ....................................................................................10
SECTION 1.14. Indenture and Securities Solely Corporate Obligations .............................................10
SECTION 1.15. No Security Interest Created ......................................................................11
ARTICLE TWO SECURITY FORMS...........................................................................................11
SECTION 2.01. Forms Generally ...................................................................................11
SECTION 2.02. Form of Trustee's Certificate of Authentication ...................................................11
SECTION 2.03. Securities in Global Form .........................................................................11
ARTICLE THREE THE SECURITIES ........................................................................................12
SECTION 3.01. Amount Unlimited; Issuable in Series ..............................................................12
SECTION 3.02. Denominations .....................................................................................14
SECTION 3.03. Authentication and Dating .........................................................................14
SECTION 3.04. Execution of Securities ...........................................................................15
SECTION 3.05. Exchange and Registration of Transfer of Securities ...............................................15
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SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities ...................................................16
SECTION 3.07. Temporary Securities ..............................................................................17
SECTION 3.08. Payment of Interest; Interest Rights Preserved ....................................................18
SECTION 3.09. Persons Deemed Owners .............................................................................20
SECTION 3.10. Cancellation ......................................................................................20
SECTION 3.11. Computation of Interest ...........................................................................20
SECTION 3.12. CUSIP Numbers .....................................................................................20
ARTICLE FOUR SATISFACTION AND DISCHARGE .............................................................................20
SECTION 4.01. Satisfaction and Discharge of Indenture ...........................................................20
SECTION 4.02. Application of Trust Money ........................................................................21
ARTICLE FIVE REMEDIES ...............................................................................................22
SECTION 5.01. Events of Default .................................................................................22
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment ................................................23
SECTION 5.03. Payment of Securities on Default; Suit Therefor ...................................................24
SECTION 5.04. Application of Moneys Collected by Trustee ........................................................26
SECTION 5.05. Proceedings by Holders ............................................................................26
SECTION 5.06. Proceedings by Trustee ............................................................................27
SECTION 5.07. Remedies Cumulative and Continuing ................................................................27
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority of Holders ............................27
SECTION 5.09. Undertaking to Pay Costs ..........................................................................28
ARTICLE SIX THE TRUSTEE .............................................................................................28
SECTION 6.01. Certain Duties and Responsibilities ...............................................................28
SECTION 6.02. Notice of Defaults ................................................................................29
SECTION 6.03. Certain Rights of Trustee .........................................................................30
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities ............................................31
SECTION 6.05. May Hold Securities ...............................................................................31
SECTION 6.06. Money Held in Trust ...............................................................................31
SECTION 6.07. Compensation and Reimbursement ....................................................................31
SECTION 6.08. Disqualification; Conflicting Interests ...........................................................32
SECTION 6.09. Corporate Trustee Required; Eligibility ...........................................................32
SECTION 6.10. Resignation and Removal; Appointment of Successor .................................................33
SECTION 6.11. Acceptance of Appointment by Successor ............................................................34
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business .......................................35
SECTION 6.13. Preferential Collection of Claims Against Company .................................................35
SECTION 6.14. Appointment of Authenticating Agent ...............................................................39
ARTICLE SEVEN HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY .....................................................40
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SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders .........................................40
SECTION 7.02. Preservation of Information: Communications to Holders ...........................................41
SECTION 7.03. Reports by Trustee ................................................................................42
SECTION 7.04. Reports by Company ................................................................................43
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE ......................................................44
SECTION 8.01. Consolidations and Mergers of Company and the Parent Guarantor and Conveyances Permitted Subject
to Certain Conditions .............................................................................44
SECTION 8.02. Rights and Duties of Successor Corporation ........................................................44
SECTION 8.03. Officers' Certificate and Opinion of Counsel ......................................................45
ARTICLE NINE SUPPLEMENTAL INDENTURES ................................................................................45
SECTION 9.01. Supplemental Indentures without Consent of Holders ................................................45
SECTION 9.02. Supplemental Indentures with Consent of Holders ...................................................47
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures ............................48
SECTION 9.04. Notation on Securities ............................................................................48
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee ..........................48
ARTICLE TEN COVENANTS ...............................................................................................49
SECTION 10.01. Payment of Principal and Interest.................................................................49
SECTION 10.02. Maintenance of Office or Agency...................................................................49
SECTION 10.03. Money for Security Payments to be Held in Trust...................................................49
SECTION 10.04. Payment of Taxes and Other Claims.................................................................50
SECTION 10.05. Maintenance of Properties.........................................................................51
SECTION 10.06. Statement as to Default...........................................................................51
SECTION 10.07. Corporate Existence...............................................................................51
SECTION 10.08. Waiver of Certain Covenants.......................................................................51
SECTION 10.09. Calculation of Original Issue Discount............................................................51
ARTICLE ELEVEN REDEMPTION OF SECURITIES..............................................................................52
SECTION 11.01. Applicability of Article..........................................................................52
SECTION 11.02. Notice of Redemption; Selection of Securities.....................................................52
SECTION 11.03. Payment of Securities Called for Redemption.......................................................53
ARTICLE TWELVE SINKING FUNDS.........................................................................................53
SECTION 12.01. Applicability of Article..........................................................................53
SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with Securities...................................53
SECTION 12.03. Redemption of Securities for Sinking Fund.........................................................54
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ARTICLE THIRTEEN HOLDERS' MEETINGS...................................................................................55
SECTION 13.01. Purposes of Meetings..............................................................................55
SECTION 13.02. Call of Meetings by Trustee.......................................................................55
SECTION 13.03. Call of Meetings by Company or Holders............................................................55
SECTION 13.04. Qualifications for Voting.........................................................................56
SECTION 13.05. Regulations.......................................................................................56
SECTION 13.06. Voting............................................................................................57
SECTION 13.07. Revocation by Holders.............................................................................57
SECTION 13.08. No Delay..........................................................................................58
SECTION 13.09. Action by Holders.................................................................................58
ARTICLE FOURTEEN DEFEASANCE..........................................................................................58
SECTION 14.01. Applicability of Article..........................................................................58
SECTION 14.02. Defeasance Upon Deposit of Moneys or U.S. Government Obligations..................................58
SECTION 14.03. Deposited Moneys and U.S. Government Obligations to Be Held in Trust..............................60
SECTION 14.04. Repayment to Company..............................................................................60
ARTICLE FIFTEEN GUARANTEES...........................................................................................60
SECTION 15.01. Guarantees........................................................................................60
SECTION 15.02. Obligations of the Guarantor Unconditional........................................................62
SECTION 15.03. Article Fifteen Not To Prevent Events of Default..................................................62
SECTION 15.04. Execution and Delivery of Guarantee...............................................................62
SECTION 15.05. Ranking of Guarantee..............................................................................63
SIGNATURES AND ATTESTATIONS......................................................................................66
EXHIBIT A
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FORM OF INDENTURE, dated as of _________ __, 2002 among L-3 Communications
Corporation, a Delaware corporation (hereinafter called the "Company"), L-3
Communications Holdings, Inc. (the "Parent Guarantor") and The Bank of New York,
a New York banking corporation (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more
series (herein called the "Securities"), as in this Indenture provided, up to
such principal amount or amounts as may from time to time be authorized in or
pursuant to one or more Board Resolutions; and
WHEREAS, all things necessary to make this Indenture a valid and legally
binding agreement of the Company, in accordance with its terms, have been done.
RECITALS OF PARENT GUARANTOR
WHEREAS, the Parent Guarantor desires to make the Guarantees provided for
herein; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Parent Guarantor, in accordance with its terms, have been done and the
Parent Guarantor will do all things necessary to make the Guarantee, when
executed by the Parent Guarantor and endorsed on the Securities authenticated
and delivered hereunder, the valid obligations of the Parent Guarantor as
hereinafter provided.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
2
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of
such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.04.
"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 authenticating agent appointed by the
Trustee pursuant to Section 6.14.
"Board of Directors" means the board of directors of the Company or the
Parent Guarantor, as the case may be, or any duly authorized committee of that
board or any director or directors and/or officer or officers of the Company or
the Parent Guarantor, as the case may be, to whom that board or committee shall
have duly delegated its authority.
"Board Resolution" means (1) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, or (2) a certificate signed by the director or directors and/or
officer or officers to whom the Board of Directors or any duly authorized
committee of that board shall have duly delegated its authority, in each case
delivered to the Trustee for the Securities of any series.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York are
authorized or required by law or executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
3
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman of the Board, the
President or a Vice President (any reference to a Vice President of the Company
herein shall be deemed to include any Vice President of the Company whether or
not designated by a number or a word or words added before or after the title
"Vice President"), and by the Chief Financial Officer, Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" of the Trustee 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 as of the date hereof
is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West, New York, New York 10286,
Attention: Corporate Trust Administration.
"Covenant Defeasance Option" has the meaning specified in Section 14.02.
"Default" means an event which is, or after notice or lapse of time or both
would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.08.
"Discharged" has the meaning specified in Section 14.02.
"Eligible Guarantors" means the Parent Guarantor and each domestic
Subsidiary of the Parent Guarantor.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means a Security evidencing all or part of a series of
Securities, including, without limitation, any temporary or permanent Global
Securities.
"Guarantee" has the meaning specified in Section 15.01.
"Guarantor" has the meaning specified in Section 3.01.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the form and terms of particular series of Securities established as
contemplated hereunder; provided, however, that if at any time more than one
Person is acting as Trustee under this instrument, "Indenture" shall mean with
respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such person is Trustee established as
contemplated by Section 3.01, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless
4
of when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures supplemental
hereto executed and delivered after such Person had become such Trustee but to
which such Person, as such Trustee, was not a party.
"interest" when used with respect to non-interest bearing Securities means
interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Security (in the case of an interest-bearing Security).
"Legal Defeasance Option" has the meaning specified in Section 14.02.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officer" of the Company or the Parent Guarantor means the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Financial Officer,
the Treasurer, the Controller, any Vice President or the Secretary of the
Company or the Parent Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Chief Financial Officer,
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be counsel for the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.02.
"Outstanding" when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and aggregated 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;
and
(iii) Securities in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture;
5
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or 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 a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee established to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purpose shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of the acceleration of the
maturity thereof pursuant to Section 5.02.
"Parent Guarantor" means the Person named as "Parent Guarantor" in the
first paragraph of this instrument until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Parent Guarantor" shall mean such successor corporation.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof, and shall include any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Exchange Act.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Redemption Date" when used with respect to any Security to be redeemed
means the date fixed for such redemption by or pursuant to the Board Resolution
or supplemental indenture establishing the series of Securities of which the
Security to be redeemed is a member.
"Redemption Price" when used with respect to any Security to be redeemed
means the price at which it is to be redeemed pursuant to the Board Resolution
or supplemental indenture establishing the series of Securities of which the
Security to be redeemed is a member.
"Regular Record Date" for the interest payable on any Interest Payment Date
(in the case of an interest-bearing Security) means such date or dates as may be
fixed for such purpose in the
6
Board Resolution or supplemental indenture establishing the series of Securities
of which the Security is a member.
"Responsible Officer" when used with respect to the Trustee means any
officer in the Corporate Trust Office of the Trustee and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's 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 instrument, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this instrument and shall more particularly mean Securities
authenticated and delivered under this instrument, exclusive, however of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" , have the meanings specified
in Section 3.05.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" within the meaning of Rule 405 under the Securities Act of 1933, as
amended.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity" when used with respect to any Security or any installment
of interest thereon means the date specified in such Security as the fixed date
on which the principal of such Security or such installment of interest is due
and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more Subsidiaries, or by the Company and one or more Subsidiaries. For the
purposes of this definition only, "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 instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee; provided, however, that if at any time there is more
than one such person, "Trustee" as used with respect to the Securities of any
series shall mean only the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, as in force at the date as of which this
instrument was executed, except as provided in Section 9.03.
"United States" means the United States excluding its territories and
possessions.
7
"U.S. Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be designated by the Corporation pursuant to Section 3.01, until a
successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" as used with respect to
the Securities of any series shall mean the U.S. Depositary with respect to the
Securities of that series.
"U.S. Government Obligations" has the meaning specified in Section 14.02.
"Voting Stock" of a corporation means stock of the class or classes having
general voting power under ordinary circumstances to elect at least a majority
of the board of directors, managers or trustees of such corporation
(irrespective of whether or not at the time stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
"Yield to Maturity" means the yield to maturity, calculated at the time of
issuance of a series of Securities or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall, upon the
request of the Trustee, furnish to the Trustee (1) an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and (2) 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 is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate (other than certificates provided pursuant to Section
10.06) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Parent
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate of opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to matters upon which his certificate
or opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or the
Parent Guarantor, as the case may be, stating that the information with respect
to such factual matters is in the possession of the Company or the Parent
Guarantor, as the case may be, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee, and,
where it is hereby expressly required, to the Company and/or the Parent
Guarantor. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Trustee and the Company and/or the Parent Guarantor and any agent of the
Trustee or the Company and/or the Parent Guarantor, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
an officer of a corporation or association or a member of a partnership or an
official of a public or governmental body, on behalf of such corporate,
association, partnership, or public or governmental body or by a fiduciary, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution
9
by any Person of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee, any Security Registrar, any Paying Agent,
any Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Securities.
SECTION 1.05. Notices, etc., to Trustee, Company and Parent Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or by the Parent
Guarantor shall be sufficient for every purpose hereunder if in writing and
mailed, first-class postage prepaid, to the Trustee addressed to it at its
Corporate Trust Office;
(2) the Company or the Parent Guarantor, as the case may be, by the
Trustee or by any Holder shall be sufficient for every purpose hereunder if
in writing and mailed, first-class postage prepaid, to the Company or the
Parent Guarantor, as the case may be, addressed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Vice President-Finance, or
at any other address previously furnished in writing to the Trustee by the
Company or the Parent Guarantor, as the case may be.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and 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. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
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SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties
imposed by any of Section 310 through 317, inclusive, of the Trust Indenture Act
through the operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the
Parent Guarantor shall bind their successors and assigns, whether so expressed
or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person (other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent, and their successors hereunder, and the
Holders of Securities) 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, then (notwithstanding any
other provision of this Indenture or the Security) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day 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
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
SECTION 1.14. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of principal of or interest on any Security or
for any claim based on any Security or this Indenture shall be had against any
director or officer or stockholder, past, present or future, of the Company or
any other obligor with respect to the
11
Securities. Any such claim against any such Person is expressly waived as a
condition of, and as consideration for, the execution and delivery of this
Indenture and the issue of the Securities.
SECTION 1.15. No Security Interest Created.
Nothing in this Indenture or in the Securities, expressed or implied, shall
be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction where property of the Company or its Subsidiaries is located.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities of each series shall be in
substantially such form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced
by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Bank of New York, as Trustee
By______________________________
Authorized Signatory
Dated:__________________________
SECTION 2.03. Securities in Global Form. If any Security of a series is
issuable in global form, such Global Security may provide that it shall
represent the aggregate amount of Outstanding Securities 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
12
reduced to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee and in such manner as shall be
specified in such Global Security. Any instructions by the Company with respect
to a Global Security, after its initial issuance, shall be in writing but need
not comply with Section 1.02.
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.
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series, including CUSIP Numbers
(which shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.05, 3.06, 3.07, 9.04 or 11.03);
(3) the date or dates on which the principal and premium, if any, of
the Securities of the series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, or the method by which such rate or rates shall be determined, if
any, the date or dates from which such interest shall accrue, or the method
by which such date or dates shall be determined, the interest payment dates
on which such interest shall be payable and the record dates for the
determination of Holders to whom interest is payable;
(5) the place or places, if any, in addition to or instead of the
Corporate Trust Office of the Trustee, where the principal of (and premium,
if any) and interest on Securities of the series shall be payable; the
extent to which, or the manner in which, any interest payable on any Global
Security on an Interest Payment Date will be paid, if other than in the
manner provided in Section 3.08; and the manner in which any principal of,
or premium, if any, on, any Global Security will be paid, if other than as
set forth elsewhere herein;
13
(6) the price or prices at which, the period or periods within 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, pursuant to
any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or repaid,
in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
5.02 or provable in bankruptcy pursuant to Section 5.03;
(10) any Events of Default with respect to the Securities of a
particular series, if not set forth herein or if other than as set forth
herein;
(11) the extent to which the defeasance provisions of this Indenture
do not apply to the Securities of the series;
(12) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
U.S. Depositary for such Global Security or Securities; the manner in which
and the circumstances under which Global Securities representing Securities
of the series may be exchanged for Securities in definitive form, if other
than, or in addition to, the manner and circumstances specified in Section
3.07;
(13) the ranking of the Securities of such series, if other than on a
parity with all other unsecured, unsubordinated indebtedness of the
Company;
(14) provisions, if any, with regard to the conversion or exchange of
the Securities of such series, at the option of the Holders thereof or the
Company, as the case may be, for or into new Securities of a different
series or common stock or other securities of the Company;
(15) which, if any, of the Eligible Guarantors, in addition to the
Parent Guarantor, shall guarantee the Securities on the terms set forth in
Article Fifteen or in the applicable supplemental indenture (the Parent
Guarantor, together with each of the other Eligible Guarantors that
guarantees the Securities, if any, the "Guarantors," each, a "Guarantor");
(16) the ranking of the obligations of each Guarantor under its
respective Guarantee, if other than on parity with all other unsecured,
unsubordinated indebtedness of such Guarantor;
14
(17) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the
Securities of such series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
resolution of the Board of Directors or in any such indenture supplemental
hereto.
SECTION 3.02. Denominations. The Securities of each series shall be
issuable in registered form without coupons in such denominations as shall be
specified as contemplated by Section 3.01. In the absence of any such
specification 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.
SECTION 3.03. Authentication and Dating. 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. Except as otherwise provided in this Article Three, the Trustee
shall thereupon authenticate and deliver said Securities to or upon a Company
Order, signed by two Officers of the Company by manual or facsimile signature.
In authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall receive,
and (subject to Section 6.01) shall be fully protected in relying upon:
(1) a copy of any Board Resolution relating thereto and, if
applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant
secretary of the Company;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate; and
(4) an Opinion of Counsel, which shall also state
(a) that the form of such Securities has been established by or
pursuant to a Board Resolution or by a supplemental indenture as permitted
by Section 2.01 in conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been established by or
pursuant to a Board Resolution or by a supplemental indenture as permitted
by Section 3.01 in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles; and
15
(d) that all laws and requirements in respect of the execution and
delivery by the Company of the Securities have been complied with and that
authentication and delivery of the Securities by the Trustee will not
violate the terms of the Indenture.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in good
faith shall determine that such action would expose the Trustee to personal
liability to existing Holders.
Each Security shall be dated the date of its authentication.
SECTION 3.04. Execution of Securities. The Securities shall be signed in
the name and on behalf of the Company by the manual or facsimile signatures of
two Officers of the Company (which may be printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise). Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture.
In case any Officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Securities so signed shall
have been authenticated and delivered by the Trustee, or disposed of by the
Company, such Securities nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Securities had not ceased to be
such officer of the Company; and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.
SECTION 3.05. Exchange and Registration of Transfer of Securities.
Securities of any series may be exchanged for a like aggregate principal amount
of Securities of the same series of other authorized denominations. Securities
to be exchanged shall be surrendered at the office or agency to be maintained by
the Company in the Borough of Manhattan, The City of New York, as provided in
Section 10.02. The Trustee is hereby appointed "Security Registrar" for the
purpose of the registration of Securities and of transfer of Securities in the
Security Register as herein provided. The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register for each series of Securities
issued hereunder (hereinafter collectively referred to as the "Security
Register") in which, subject to such reasonable regulations at it may prescribe,
the Company shall provide for the registration of Securities and the transfer of
Securities as in this Article Three provided. The Security Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time. Upon due presentment for registration of transfer of
any Security of any series at such office or agency, the Company shall execute
and the Trustee shall register, authenticate and deliver in the name of the
transferee or transferees a new Security or Securities of the same series for an
equal aggregate principal amount.
16
All Securities presented for registration of transfer or for exchange,
redemption or payment shall (if so required by the Company or the Security
Registrar) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the registered Holder or his attorney duly
authorized in writing.
No service charge shall be made for any exchange or registration of
transfer 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
therewith.
The Company shall not be required to exchange or register the transfer of
(a) any Securities of any series for a period of 15 days next preceding any
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security to be redeemed in part, the portion thereof not so to be redeemed.
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company in the case of a mutilated Security shall, and in the case
of a lost, stolen or destroyed Security may in its discretion, execute, and upon
its request the Trustee shall authenticate and deliver, a new Security of the
same series bearing a number, letter or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen, or if any such Security shall have matured or shall be about to
mature, instead of issuing a substituted Security, the Company may pay or
authorize the payment of the same without surrender thereof (except in the case
of a mutilated Security). In every case the applicant for a substituted Security
shall furnish to the Company and to the Trustee such security or indemnity as
may be required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
to the Trustee evidence to their satisfaction of the destruction, loss or theft
of such Security and of the ownership thereof.
The Trustee may authenticate any such substituted Security and deliver the
same upon the written request or authorization of any Officer of the Company.
Upon the issuance of any substituted Security, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith
and in addition a further sum not exceeding two dollars for each Security so
issued in substitution.
Every substituted Security issued pursuant to the provisions of this
Section 3.06 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder. All Securities shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude
(to the extent lawful) any and all other rights or remedies with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
17
SECTION 3.07. Temporary Securities. Pending the preparation of definitive
Securities of any series the Company may execute and the Trustee shall
authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every such temporary Security shall be
executed by the Company and shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. Without unreasonable delay the Company will execute
and deliver to the Trustee definitive Securities of such series and thereupon
any or all temporary Securities of such series may be surrendered in exchange
therefore, at the Corporate Trust Office of the Trustee, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities. Such exchange shall be made
by the Company at its own expense and without any charge therefor except that in
case of any such exchange involving any registration of transfer the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities authenticated and delivered
hereunder.
If the Company shall establish pursuant to Section 3.01 that the Securities
of a series are to be issued in whole or in part in the form of one or more
Global Securities, then the Company shall execute and the Trustee shall, in
accordance with Section 3.03 and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities in temporary or permanent
form that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the Outstanding Securities of such series to be
represented by one or more Global Securities, (ii) shall be registered in the
name of the U.S. Depositary for such Global Security or Securities or the
nominee of such depositary, and (iii) shall bear a legend substantially to the
following effect: "This Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary, unless and until this Security is exchanged in whole or in part for
Securities in definitive form" and such other legend as may be required by the
U.S. Depositary.
Notwithstanding any other provision of this Section or Section 3.05, unless
and until it is exchanged in whole or in part for Securities in definitive form,
a Global Security representing all or a portion of the Securities of a series
may not be transferred except as a whole by the U.S. Depositary for such series
to a nominee of such depositary or by a nominee of such depositary to such
depositary or another nominee of such depositary or by such depositary or any
such nominee to a successor U.S. Depositary for such series or a nominee of such
successor depositary.
If at any time the U.S. Depositary for the Securities of a series notifies
the Company that it is unwilling or unable to continue as U.S. Depositary for
the Securities of such series or if at any time the U.S. Depositary for
Securities of a series shall no longer be a clearing agency registered and in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Company shall appoint a successor U.S.
Depositary with respect to the Securities of such series. If a successor U.S.
Depositary for the Securities of such
18
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities. In such
event, the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of the
Global Security or Securities representing such series in exchange for such
Global Security or Securities.
If the Securities of any series shall have been issued in the form of one
or more Global Securities and if an Event of Default with respect to the
Securities of such series shall have occurred and be continuing, the Company
will promptly execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 3.01 with respect to
Securities of a series, the U.S. Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series in definitive form on such terms as are
acceptable to the Company and such depositary. Thereupon, the Company shall
execute and the Trustee shall authenticate and deliver, without charge:
(1) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series, of any authorized denomination
as requested by such Person in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global Security;
and
(2) to the U.S. Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
Upon the exchange of a Global Security in whole for Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Securities so issued in exchange for a Global Security shall be registered in
such names and in such authorized denominations as the U.S. Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are so registered.
SECTION 3.08. Payment of Interest; Interest Rights Preserved. Interest on
any Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall
19
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 any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date or within 30 days thereafter
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (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 and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security Register not
less than 10 days prior to such Special Record Date. The Trustee may, in
its discretion, in the name and at the expense of the Company, cause a
similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall
20
carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 3.09. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee, the
Authenticating Agent and any agent of the Company or the Trustee may treat the
Person in whose name the Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, and (subject to Section
3.08) interest on, such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee, the
Authenticating Agent nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.10. Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and Securities surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in its customary manner.
SECTION 3.11. Computation of Interest. Except as otherwise specified as
contemplated by Section 3.01 for Securities of any Series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 3.12. 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 FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, on demand of and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been
21
replaced or paid as provided in Section 3.06 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
10.03) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturities
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount 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 to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and the obligations
of the Trustee to any Authenticating Agent under Section 6.14 shall survive such
satisfaction and discharge.
SECTION 4.02. Application of Trust Money. All money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
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ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
"Events of Default", wherever used herein with respect to Securities of any
series, means any one of the following events and such other events as may be
established with respect to the Securities of that series as contemplated by
Section 3.01 hereof (whatever the reasons for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any
Security of that series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of any of the principal of and premium, if
any, on any Security of that series as and when the same shall become due
and payable, either at Maturity, upon redemption, by declaration, repayment
or otherwise; or
(c) default in the payment or satisfaction of any sinking fund
installment as and when the same shall become due and payable by the terms
of a Security of that series; or
(d) failure on the part of the Company or a Guarantor duly to observe
or perform any other of the covenants or agreements on the part of the
Company or a Guarantor in this Indenture (other than those set forth
exclusively in the terms of any particular series of Securities established
as contemplated in this Indenture) continued for a period of 60 days after
the date on which written notice of such failure, requiring the Company or
a Guarantor to remedy the same, shall have been given to the Company or a
Guarantor by the Trustee, or to the Company or a Guarantor and the Trustee
by the Holders of at least 25 percent in aggregate principal amount of the
Securities of such series at the time Outstanding, and stating that such
notice is a "Notice of Default" hereunder; or
(e) the commencement by the Parent Guarantor, the Company or any
Significant Subsidiary of the Company or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary of a voluntary
case or proceeding under any applicable U.S. federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Parent Guarantor, the Company or any Significant Subsidiary of the Company
or any group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary to the entry of a decree or order for relief in
respect of the Parent Guarantor, the Company or any Significant Subsidiary
of the Company or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary in an involuntary case or proceeding
under any applicable U.S. federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
23
bankruptcy or insolvency case or proceeding against the Parent Guarantor,
the Company or any Significant Subsidiary of the Company or any group of
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary, or the filing by the Parent Guarantor, the Company or any
Significant Subsidiary of the Company or any group of Subsidiaries that,
taken as a whole, would constitute a Significant Subsidiary of a petition
or answer or consent seeking reorganization or relief under any applicable
U.S. federal or state law, or the consent by the Parent Guarantor, the
Company or any Significant Subsidiary of the Company or any group of
Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary to the filing of such petition or to the appointment of or the
taking possession by a custodian of the Parent Guarantor, the Company or
any Significant Subsidiary of the Company or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary or of any
substantial part of their properties, or the making by the Parent
Guarantor, the Company or any Significant Subsidiary of the Company or any
group of Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary of an assignment for the benefit of creditors, or
the admission by the Parent Guarantor, the Company or any Significant
Subsidiary of the Company or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in writing of their
inability to pay its debts generally as they become due, or the taking of
corporate action by the Parent Guarantor, the Company or any Significant
Subsidiary of the Company or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary expressly in furtherance
of any such action; or
(f) a Guarantee of a Security of that Series (other than in accordance
with the terms of the Guarantee) shall be held in any judicial proceeding
to be unenforceable or invalid.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in Section 5.01 (other than in clause (e)
with respect to the Company or the Parent Guarantor) or established pursuant to
Section 3.01 with respect to Securities of any series at the time Outstanding
occurs and is continuing, then and in each and every such case, unless the
principal of all the Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25 percent in
aggregate principal amount of the Securities of such series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Securities of such
series plus accrued and unpaid interest to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such series
contained to the contrary notwithstanding. If an Event of Default described in
clause (e) in respect of the Parent Guarantor or the Company occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, the principal amount
of all the Securities of each series then Outstanding hereunder (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms thereof) plus any accrued and unpaid
interest shall become immediately due and payable. The foregoing provisions are,
however, subject to the condition that if, at any time after the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the
24
principal amounts as may be specified in the terms of that series) of the
Securities of any series (or of all the Securities, as the case may be) shall
have been declared or become due and payable, and before any judgment or decree
for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest upon all the
Securities of such series (or of all the Securities, as the case may be) and the
principal of and premium, if any, on any and all Securities of such series (or
of all the Securities, as the case may be) which shall have become due otherwise
than by acceleration (with interest on overdue installments of interest, to the
extent that payment of such interest is enforceable under applicable law, and on
such principal and premium, if any, at the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) borne by the Securities of
such series (or at the rates of interest or Yields to Maturity of all the
Securities, as the case may be), to the date of such payment or deposit) and the
reasonable expenses of the Trustee, and any and all defaults under this
Indenture, other than the nonpayment of principal of or premium, if any, or
accrued interest on Securities of such series (or of all the Securities, as the
case may be) which shall have become due by acceleration, shall have been cured
or waived pursuant to Section 5.08, then and in every such case the Holders of a
majority in aggregate principal amount of the Securities of such series (or of
all the Securities, as the case may be) then Outstanding, by written notice to
the Company and to the Trustee, may waive all defaults with respect to that
series (or with respect to all Securities, as the case may be) and rescind and
annul such declaration and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
In case the Trustee or any Holder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or to such Holder, then and
in every such case the Company and the Trustee and the Holders shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee and the Holders shall
continue as though no such proceeding had been taken.
SECTION 5.03. Payment of Securities on Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the payment
of any installment of interest upon any of the Securities of any series as and
when the same shall become due and payable, and such default shall have
continued for a period of 30 days, or (b) in case default shall be made in the
payment of the principal of and premium, if any, on any of the Securities of any
series as and when the same shall become due and payable, whether at maturity of
the Securities of that series or upon redemption or by declaration, repayment or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the Holders of the Securities of that series, the
whole amount that then shall have become due and payable on all such Securities
of that series for principal and premium, if any, or interest, or both, as the
case may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) borne by the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Trustee, its
25
agents, attorneys and counsel, and any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Company or any other obligor upon such Securities wherever situated the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Securities of any
series under any applicable bankruptcy, insolvency or similar law, or in case a
receiver or trustee shall have been appointed for the property of the Company or
such other obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities of any series, or
to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Securities of any series 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 pursuant to the
provisions of this Section 5.03 shall be entitled and empowered, by intervention
in such proceedings or otherwise, to file and prove a claim or claims for the
whole amount of principal (and premium, if any) and interest (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) owing
and unpaid in respect of the Securities of any series and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
of the Holders allowed in such judicial proceedings relative to the Company or
any other obligor on the Securities of any series, its or their creditors, or
its or their property, and to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders 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 compensation and expenses, including counsel fees and
expenses incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses and counsel fees and expenses
out of the estate in any such proceedings shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, moneys, securities and other property which
the Holders of the Securities of any series may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or
arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof on any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the Holders of all the
Securities in respect of which such action was taken.
26
SECTION 5.04. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee under this Article Five shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith;
SECOND: In case the principal of the Outstanding Securities in respect
of which such moneys have been collected shall not have become due and be
unpaid, to the payment of interest on the Securities of that series, in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate or Yield to Maturity (in
the case of Original Issue Discount Securities) borne by the Securities of
that series, such payments to be made ratably to the persons entitled
thereto;
THIRD: In case the principal of the Outstanding Securities in respect
of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Securities of that series for principal and premium, if
any, and interest, with interest on the overdue principal and premium, if
any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Securities) borne by the
Securities of that series; and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Securities of that
series, then to the payment of such principal and premium, if any, and
interest without preference or priority of principal and premium, if any,
over interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any
Security of that series over any other Security of that series, ratably to
the aggregate of such principal and premium, if any, and accrued and unpaid
interest; and
FOURTH: Any surplus then remaining shall be paid to the Company, its
successors or assigns, or to whomsoever may be entitled to receive the
same.
SECTION 5.05. Proceedings by Holders. No Holder of any Security of any
series shall have any right by virtue of or by availing of any provision of this
Indenture to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25 percent in aggregate principal amount of the Securities of that series then
Outstanding shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such indemnity reasonably satisfactory to the Trustee as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee for 60 days after its receipt of such
notice, request and offer of
27
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and during such 60-day period, no direction inconsistent with such
written request has been given to the Trustee by the Holders of a majority in
aggregate principal amount of the Securities of that series then Outstanding (or
such amount as shall have acted at a meeting pursuant to the provisions of this
Indenture), it being understood and intended, and being expressly covenanted by
the taker and Holder of every Security with every other taker and Holder and the
Trustee, that no one or more Holders shall have any right in any manner whatever
by virtue of or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holder, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all such Holders.
Notwithstanding any other provisions in this Indenture, however, the right
of any Holder of any Security to receive payment of the principal of and
premium, if any, and interest on such Security, on or after the respective due
dates expressed in such Security, or to institute suit for the enforcement of
any such payment on or after such respective dates shall not be impaired or
affected without the written consent of such Holder.
SECTION 5.06. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem necessary to protect and enforce any of such rights,
either by suit in equity or by action at law or by proceeding in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 5.07. Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Holders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any Holder to exercise any right or power accruing
upon any default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.05, every
power and remedy given by this Article Five or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
SECTION 5.08. Direction of Proceedings and Waiver of Defaults by Majority
of Holders. The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding 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, however, that
(subject to the provisions of Section 6.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee, being advised by counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith shall determine that the action or proceedings
so directed would involve the Trustee in personal liability. Subject to Section
5.02, the Holders of a majority in aggregate principal amount of the Securities
of that
28
series at the time Outstanding may on behalf of the Holders of all of the
Securities of that series waive any past default or Event of Default described
in Section 5.01, or any other Event of Default for such series specified in the
terms thereof as contemplated by Section 3.01, and its consequences except a
default in the payment of interest, or premium, if any, on, or the principal of
any of the Securities or a default which, under Section 9.02, cannot be modified
or amended without the consent of each Holder of each Security affected by such
waiver. Upon any such waiver the Company, the Trustee and the Holders of the
Securities of that series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default hereunder shall have been waived as
permitted by this Section 5.08, said default or Event of Default shall for all
purposes of the Securities of that series and this Indenture be deemed to have
been cured and to be not continuing.
SECTION 5.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, 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 5.09
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Holder of the Securities of any series or group of such Holders, holding in
the aggregate more than ten percent in principal amount of the Outstanding
Securities of that 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 against the Company on or after the due date expressed in such
Security.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only such
duties, as are specifically set forth in this Indenture or the Trust
Indenture Act, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) 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 provisions
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 substantially conform to the requirements of this Indenture (but
needs not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
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(b) In case an Event of Default actually known to a Responsible Officer of
the Trustee with respect to the Securities of a series has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to such series, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(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
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) 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;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders pursuant to Section 5.08 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; and
(4) 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.
(d) The Trustee shall not be obligated to pay interest on any money or
other assets received by it unless otherwise agreed with the Company. Assets
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of that Series, as their names and addresses appear in the Security
Register, notice of all defaults with respect to that Series actually known to a
Responsible Officer of the Trustee, unless such defaults shall have been cured
or waived before the giving of such notice; provided, however, that, except in
the case of a default in the payment of the principal of or premium, if any, or
interest on any of the Securities of such series or in the making of any sinking
fund payment with respect to such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders. 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.
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SECTION 6.03. Certain Rights of Trustee.
Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document (whether in its
original or facsimile form) believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(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, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with the counsel of its own selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in complying 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 or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the expense of the Company and shall incur no liability of any
kind by reason of such inquiry or investigation;
(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 deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the
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Trustee pursuant to Section 1.05, and such notice references the
Securities and 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 each agent, custodian and other Person employed
to act hereunder.
(j) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee and any Authenticating Agent assume no responsibility for their
correctness. The Trustee and any Authenticating Agent make no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the Company of
the Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or
any other agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable
32
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as shall be
determined by a court of competent jurisdiction to have been caused by its
own negligence or willful misconduct; and
(3) to fully indemnify the Trustee, any predecessor Trustee and their
agents for, and to hold them harmless against, any and all loss, liability,
claim, damage, taxes (other than taxes based upon the income of the
Trustee) or expense (including legal fees and expenses) incurred without
negligence or willful misconduct on their part, arising out of or in
connection with the acceptance or administration of this trust, including
the costs and expenses of defending themselves 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 their powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.01(e), 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 and the resignation or removal of the Trustee.
SECTION 6.08. Disqualification; Conflicting Interests.
The Trustee for the Securities shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time required
thereby. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the penultimate paragraph of Section
310(b) of the Trust Indenture Act. In determining whether the Trustee has a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
with respect to the Securities of any series, there shall be excluded Securities
of any particular series of Securities other than that series.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(1) 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, and subject
to supervision or examination by Federal or State authority, or
(2) a corporation or other Person organized and doing business under
the laws of a foreign government that is permitted to act as a Trustee
pursuant to a rule, regulation, or other order of the Commission,
authorized under such laws to exercise corporate trust
33
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustee,
having a combined capital and surplus of at least $50,000,000 and having its
Corporate Trust Office in the Borough of Manhattan, the City of New York, or
such other city as contemplated by Section 3.01 with respect to any series of
Securities. If such corporation publishes reports of condition at least
annually, pursuant to law or to requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
Neither the Company nor any Person directly or indirectly controlling,
controlled by, or under the common control with the Company shall serve as
Trustee for the Securities. 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 hereunder specified in this
Article.
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 under Section 6.11.
(b) The Trustee may resign at any time with respect to one or more or all
series of Securities by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or all series
at the time Outstanding may at any time remove the Trustee with respect to the
applicable series or all series, as the case may be, and by written notice of
such action to the Company, the Trustee and the successor Trustee, nominate with
respect to the applicable series or all series, as the case may be, a successor
Trustee which shall be deemed appointed as successor Trustee with respect to the
applicable series unless within ten days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Holder of
Securities of the applicable series who has been a bona fide holder of a
Security or the applicable series for at least six months may, subject to the
provisions of Section 5.09 on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 6.08 hereof 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, unless the Trustee's duty to resign is
stayed in accordance with the provisions of Section 310(b) of the Trust
Indenture Act, or
34
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting, or a decree or order
for relief by a court having jurisdiction in the premises shall have been
entered in respect of the Trustee in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State, bankruptcy, insolvency or similar law; or a decree or
order by a court having jurisdiction in the premises for the appointment of
a receiver or custodian or liquidator or trustee or assignee in bankruptcy
or insolvency of the Trustee or of its property, or for the winding up of
its affairs shall have been entered, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, or shall consent to
the appointment of a receiver or custodian or liquidator or trustee or
assignee in bankruptcy or insolvency of it or of its property, or shall
make an assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or corporate action shall be taken by the
Trustee in furtherance of any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.09, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee to the vacated office. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, 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 shall have been so appointed by the Company or the Holders
and accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
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.
35
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 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, subject nevertheless to its lien, if any, provided for in
Section 6.07. 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.
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 predecessor
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and 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 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.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 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 of 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 Security 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 Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in Subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
36
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third Person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws, as now or
hereafter constituted, or any other Federal or State bankruptcy,
insolvency or similar law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter or mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in Subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three-month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or
37
in substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law, the same percentage of
their respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee and the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal bankruptcy laws, as
now or hereafter constituted, or any other applicable Federal or State
bankruptcy, insolvency or similar law, but after crediting thereon receipts on
account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from funds and property so held in
such special account. As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee and the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee and the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provision of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
three-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three-month period, it shall be
subject to the provisions of this Subsection if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such
Trustee had continued as Trustee, occurred after the beginning of
such three-months period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
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(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any securities or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company or an
obligor under the Securities; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purpose of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "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.
(4) The term "self-liquidating paper" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company
39
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, ▇▇▇▇ of
exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
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 which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon exchange, transfer
or partial redemption thereof or pursuant to Section 3.06, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a bank or trust company or corporation organized and doing business and
in good standing under the laws of the United States of America, or of any
State, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $1,500,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent 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 at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail notice of such
appointment to all Holders, as their
40
names and addresses appear on 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 herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities shall
have endorsed thereon, in addition to the Trustee's Certificate, an alternate
Trustee's Certificate in the following form:
This is one of the Securities described in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By____________________________________
Authenticating Agent
By____________________________________
Authorized Signatory
Dated: ______________________________
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, (and not more than 15 days after each Regular
Record Date of each series of Securities having such a Regular Record
Date), a list, in such form as the Trustee may reasonable require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
41
excluding from any such list names and addresses received by the Trustee in the
capacity of Security Registrar if the Trustee is then acting in such capacity.
SECTION 7.02. Preservation of Information: Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in the capacity of Security
Registrar if the Trustee is then acting in such capacity. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a
new list so furnished.
(b) If three or more Holders (hereinafter 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 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 with respect to their
rights under this Indenture or under the Securities and is accompanied by a copy
of the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 7.02(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 7.02(a), a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and 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 interests 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.
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(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 Authenticating Agent nor any Paying Agent nor any Security Registrar shall
be held accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with Section 7.02(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 7.02(b).
SECTION 7.03. Reports by Trustee.
(a) Within 60 days after ___________ of each year commencing with the year
200_, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report dated as of
___________ with respect to any of the following events which may have occurred
within the prior 12 months (but if no such event has occurred within such period
no report need be transmitted):
(1) any change to its eligibility under Section 6.09 and its
qualifications under Section 6.08;
(2) the creation of any material change to a relationship specified in
Section 310(b)(1) through Section 310(b)(10) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining unpaid
aggregate not more than 1/2 of 1% of the principal amount of the
Outstanding Securities on the date of such report;
(4) any change to the amount, interest rate and maturity date of all
other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b)(2), (3),
(4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 6.02.
43
(b) The Trustee shall transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to Subsection (a) of this
Section (or if no such report has yet been so transmitted, since the date of
execution of this instrument) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this Subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Outstanding Securities at
such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which the
Securities are listed and also with the Commission. The Company will notify the
Trustee when the Securities are listed on any securities exchange.
SECTION 7.04. Reports by Company.
The Company will
(1) file with the Trustee, within 15 days after the Company files them
with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and regulations
prescribe) 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; provided, however, that the Company shall not be required to deliver
to the Trustee any materials for which the Company has sought and obtained
confidential treatment from the Commission; or, if the Company is not
required to file information, documents or reports pursuant to either of
said Sections, then it will 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;
(2) 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
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Registrar, 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 (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
44
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 Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
SECTION 8.01. Consolidations and Mergers of Company and the Parent
Guarantor and Conveyances Permitted Subject to Certain Conditions.
Neither the Parent Guarantor nor the Company shall consolidate with or
merge with or into any other Person or convey, transfer or lease its properties
and assets substantially as an entirety to any Person, and neither the Parent
Guarantor nor the Company shall permit any Person to consolidate with or merge
into the Parent Guarantor or the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Parent Guarantor or
the Company, unless:
(1) in the event that the Parent Guarantor or the Company shall
consolidate with or merge into another Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Parent Guarantor or
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Parent
Guarantor or the Company substantially as an entirety shall be a
corporation organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia and, if
the entity surviving such transaction or transferee entity is not the
Parent Guarantor or the Company, then such surviving or transferee entity
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and premium, if any, and interest, if
any, on all the Securities and the performance of every covenant of this
Indenture on the part of the Parent Guarantor or the Company, as the case
may be, to be performed or observed;
(2) at the time of consummation of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 8.02. Rights and Duties of Successor Corporation.
Upon any consolidation or merger by the Parent Guarantor or the Company
with or into any other corporation or any conveyance, transfer or lease of the
properties and assets of the
45
Parent Guarantor or the Company substantially as an entirety to any Person, in
accordance with Section 8.01, the successor corporation formed by such
consolidation or into which the Parent Guarantor or 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 Parent Guarantor
or the Company under this Indenture with the same effect as if such successor
corporation had been named herein as the Company or the Parent Guarantor, as the
case may be, 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.
The successor corporation of the Company thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, any or all
of the Securities issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
SECTION 8.03. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Section 6.01, shall be provided
with an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any such consolidation, merger, sale or conveyance, and any such
assumption, complies with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of Holders. The
Company, when authorized by a Board Resolution, the Parent Guarantor and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Parent
Guarantor or the Company, or successive successions, and the assumption by
the successor corporation of the covenants, agreements and obligations of
the Parent Guarantor or the Company hereunder and the Securities or the
Guarantees, if any; or
46
(b) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets which the Company or the
Parent Guarantor may desire; or
(c) to add to the covenants of the Company or the Parent Guarantor
such further covenants, restrictions or conditions for the protection 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) as the Board of Directors of the Company or the Parent Guarantor
and the Trustee shall consider to be for the protection of the Holders of
such Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants, restrictions
or conditions a default or an Event of Default permitting the enforcement
of all or any of the several remedies provided in this Indenture as herein
set forth; provided, however, that in respect of any such additional
covenant, restriction or condition such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default; or
(d) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with the Securities issued
hereunder in fully registered form and to make all appropriate changes for
such purpose; or
(e) to establish the form or terms of Securities or the Guarantees, if
any, of any series as permitted by Sections 2.01 and 3.01; or
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture which shall not adversely
affect the interests of any Holder in any material respect; or
(g) 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; or
(h) to surrender any right or power herein conferred upon the Company
and/or the Parent Guarantor; or
(i) to comply with the requirements of the Commission in order to
maintain the qualification of this Indenture under the Trust Indenture Act;
or
(j) to add or modify any other provisions with respect to matters or
questions arising under this Indenture which the Company and the Trustee
may deem necessary or desirable; provided, however, that such action
pursuant to this clause (j) does not, in the good faith opinion of the
Board of Directors of the Company (as evidenced by a Board
47
Resolution) and the Trustee, adversely affect the interests of any
Holder of Securities in any material respect; or
(k) to modify the covenants or Events of Default solely in respect of,
or add new covenants or Events of Default that apply solely to, Securities
not Outstanding on the date of such supplemental indenture; or
(l) to provide for guarantees of the Securities of any series and/or
to specify the ranking of the obligations of each Guarantor under its
respective Guarantee.
The Trustee is hereby authorized to join with the Parent Guarantor and the
Company in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Parent Guarantor, the Company and the Trustee
without the consent of the Holders of any of the Securities at the time
Outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With the
consent (evidenced as provided in Section 1.04) of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities of each
series affected by such supplemental indenture (each series voting separately as
a class), the Company, when authorized by a Board Resolution, the Parent
Guarantor and the Trustee may from time to time and at any time 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 any supplemental indenture or of modifying in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of any Security, or reduce the
rate or change the time of payment of interest thereon, or reduce the principal
amount thereof or any premium thereon, or make the principal thereof or interest
or premium thereon payable in any coin or currency other than that provided in
the Securities or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
Maturity thereof pursuant to Section 5.02 or the amount thereof provable in
bankruptcy pursuant to Section 5.03 or impair the right to institute suit for
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or adversely affect
the right of repayment, if any, at the option of the Holder without the consent
of the Holder of each Security so affected, (ii) reduce the aforesaid percentage
of Securities, the Holders of which are required to consent to any such
supplemental indenture, or the Holders of which are required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, (iii) modify
the obligation of the Parent Guarantor or the Company to maintain an office or
agency in the City of New York pursuant to Section 10.02, or (iv) release any
Guarantor from its obligations under its Guarantee (other than in accordance
with the terms thereof) without the consent of the Holder of
48
each Security so affected. A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Securities of any other series.
Upon the request of the Company and the Parent Guarantor, accompanied by a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of Holders as
aforesaid, the Trustee shall join with the Company and the Parent Guarantor in
the execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures. Any supplemental indenture executed pursuant to the provisions of
this Article Nine shall comply with the Trust Indenture Act of 1939, as then in
effect. Upon the execution of any supplemental indenture pursuant to the
provisions of this Article Nine, this Indenture shall be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company, the Parent Guarantor and the Holders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities. Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article Nine may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Section 6.01, shall be provided
with an Officers' Certificate and an Opinion of Counsel as conclusive evidence
that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article Nine.
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ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of, premium, if any,
and interest on the Securities in accordance with the terms of the Securities
and this Indenture.
SECTION 10.02. Maintenance of Office or Agency.
The Parent Guarantor and the Company shall maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment and an office or agency where Securities
may be surrendered for transfer or exchange and where notices and demands to or
upon the Parent Guarantor or the Company in respect of the Securities and this
Indenture may be served. The Corporate Trust Office of the Trustee shall be such
office of the Parent Guarantor and the Company in The City of New York, and the
Trustee shall be the agent of the Parent Guarantor and the Company for all of
the foregoing purposes, unless the Parent Guarantor or the Company shall
designate and maintain some other office or agency for such purposes and give
the Trustee written notice of the location thereof. The Parent Guarantor and the
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Parent Guarantor or
the Company shall fail to maintain any such required office or agency in the
Borough of Manhattan, The City of New York, the Corporate Trust Office of the
Trustee shall be conclusively deemed to be the agency of the Parent Guarantor
and the Company for all such purposes.
SECTION 10.03. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of or premium, if any, or interest on,
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or 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 it will, prior to
10:00 am on each due date of the principal of or interest on, any Securities,
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 or premium, if any, or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of the principal of or
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal or premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal or 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; and 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; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.04. Payment of Taxes and Other Claims.
The Parent Guarantor and the Company will, and will cause any Significant
Subsidiary to, promptly pay and discharge or cause to be paid and discharged all
material taxes, assessments and governmental charges or levies lawfully imposed
upon it or upon its income or profits or upon any of its property, real or
personal, or upon any part thereof, as well as all material claims for labor,
materials and supplies which, if unpaid, might by law become a lien or charge
upon its property; provided, however, that neither the Parent Guarantor, the
Company nor any Significant Subsidiary shall be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge, levy, or claim
if the amount, applicability or validity thereof shall currently be contested in
good faith by appropriate proceedings and if the Parent Guarantor, the Company
or such Significant Subsidiary, as the case may be, shall have set aside on its
books reserves deemed by it adequate with respect thereto.
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SECTION 10.05. Maintenance of Properties.
Each of the Parent Guarantor and the Company will maintain and keep its
properties and every part thereof in such repair, working order and condition,
and make or cause to be made all such needful and proper repairs, renewals and
replacements thereto, as in the judgment of the Parent Guarantor or the Company,
as the case may be, are necessary in the interests of the Parent Guarantor or
the Company, as the case may be; provided, however, that nothing contained in
this Section shall prevent the Parent Guarantor or the Company from selling,
abandoning or otherwise disposing of any of its properties or discontinuing a
part of its business from time to time if, in the judgment of the Parent
Guarantor or the Company, such sale, abandonment, disposition or discontinuance
is advisable and does not materially adversely affect the interests or business
of the Parent Guarantor or the Company, as the case may be.
SECTION 10.06. Statement as to Default.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company (which as of the date hereof is December 31), an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company, they would normally have
knowledge of any failure by the Company to comply with all conditions, or any
Default by the Company with respect to any covenants, under this Indenture, and
further stating whether or not they have knowledge of any such failure or
Default and, if so, specifying each such failure or Default and the nature
thereof. In the event an Officer of the Company comes to have actual knowledge
of a Default, regardless of the date, the Company shall deliver an Officers'
Certificate to the Trustee specifying such Default and the nature and status
thereof.
SECTION 10.07. Corporate Existence.
Subject to Article Eight, each of the Parent Guarantor and 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 Parent Guarantor and the Company shall
not be required to preserve any such right or franchise if the Parent Guarantor
and the Company determine that the preservation thereof is no longer desirable
in the conduct of the business of the Parent Guarantor and the Company, as the
case may be, and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.08. Waiver of Certain Covenants.
The Parent Guarantor and the Company may omit in any particular instance to
comply with any covenant or condition set forth in Section 10.04, 10.05 and
10.07 or any covenant added for the benefit of any series of Securities as
contemplated by Section 3.01, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Securities of such
series at the time Outstanding shall, by Act of such Holders, waive such
compliance in such instance, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Parent Guarantor and the
Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
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SECTION 10.09. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) 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 (ii) 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.
SECTION 10.10 Reports.
(a) The Company shall deliver to the Trustee within 15 days after it files
them with the Commission copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act; provided, however, the Company shall not be required to
deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. The Company also shall comply
with the other provisions of Section 314(a) of the Trust Indenture Act.
(b) 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 informational 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 conclusively rely exclusively on Officers' Certificates).
(c) If at any time the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a Holder of a Security, the Company will
promptly furnish or cause to be furnished to such Holder or to a prospective
purchaser of such Security designated by such Holder, as the case may be, the
information, if any, required to be delivered by it pursuant to Rule 144A(d)(4)
under the Securities Act of 1933, as amended, to permit compliance with Rule
144A in connection with the resale of such Security.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
SECTION 11.02. Notice of Redemption; Selection
of Securities. In case the
Company shall desire to exercise the right to redeem all, or, as the case may
be, any part of the Securities of any series in accordance with their terms, it
shall fix a date for redemption and shall mail or cause to be mailed a notice of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the Holders of Securities of such series so to be redeemed as
a whole or in part at their last addresses as the same appear on the Security
Register. Such mailing shall be by first class mail. The notice if mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice to the Holder of any Security of
a series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
Each such notice of redemption shall include CUSIP numbers and specify the
date fixed for redemption, the redemption price at which Securities of such
series are to be redeemed, the place or places of payment, that payment will be
made upon presentation and surrender of such Securities, that any interest
accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date any interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Securities of
a series are to be redeemed the notice of redemption shall specify the numbers
of the Securities of that series to be redeemed. In case any Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of that series in principal amount equal to the
unredeemed potion thereof will be issued.
Prior to 10:00 am on the redemption date specified in the notice of
redemption given as provided in this Section 11.02, the Company will deposit
with the Trustee or with one or more paying agents an amount of money sufficient
to redeem on the redemption date all the Securities or portions thereof so
called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption.
If all or less than all the Securities of a series are to be redeemed, the
Company will give the Trustee notice not less than 60 days prior to the
redemption date as to the aggregate principal amount of Securities to be
redeemed and the Trustee shall select, in such manner as in its sole
53
discretion it shall deem appropriate, the Securities of that series or portions
thereof (in multiples of $1,000, except as otherwise set forth in the applicable
form of Security) to be redeemed.
SECTION 11.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as provided in Section 11.02 or Section 12.03, the
Securities or portions of Securities of the series with respect to which such
notice has been given shall become due and payable on the date and at the place
or places stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities at
the applicable redemption price, together with any interest accrued to said
date) any interest on the Securities or portions of Securities of any series so
called for redemption shall cease to accrue. On presentation and surrender of
such Securities at a place of payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with any interest accrued
thereon to the date fixed for redemption.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of such series, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Security so presented.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 3.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment".
SECTION 12.02. Satisfaction of Mandatory Sinking Fund Payments with
Securities. In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option (a) deliver to the Trustee Securities of that series theretofore
purchased or otherwise acquired by the Company, or (b) receive credit for the
principal amount of Securities of that series which have been previously
delivered by the Trustee to the Company which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities; 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 mandatory sinking
fund payment shall be reduced accordingly.
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SECTION 12.03. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Company will deliver to the Trustee a certificate signed by the Treasurer or any
Assistant Treasurer of the Company specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering or crediting
Securities of that series pursuant to Section 12.02 (which Securities will, if
not previously delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall also state that no Event of
Default has occurred and is continuing with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate (or to deliver the Securities
specified in this paragraph), the sinking fund payment due on the next
succeeding sinking fund payment date for that series shall be paid entirely in
cash and shall be sufficient to redeem the principal amount of such Securities
subject to a mandatory sinking fund payment without the option to deliver or
credit Securities as provided in Section 12.02 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Securities at the Redemption Price specified in such Securities for
operation of the sinking fund together with accrued interest to the date fixed
for redemption. Any sinking fund moneys not so applied or allocated by the
Trustee to the redemption of Securities shall be added to the next cash sinking
fund payment received by the Trustee for such series and, together with such
payment, shall be applied in accordance with the provisions of this Section
12.03. Any and all sinking fund moneys with respect to the Securities of any
particular series held by the Trustee on the last sinking fund payment date with
respect to Securities of such series and not held for the payment or redemption
of particular Securities shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose, to the payment
of the principal of the Securities of that series at maturity.
The Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in the last paragraph of Section 11.02
and the Company shall cause notice of the redemption thereof to be given in the
manner provided in Section 11.02 except that the notice of redemption shall also
state that the Securities are being redeemed by operation of the sinking fund.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Section 11.03.
Prior to 10:00 am on each sinking fund payment date, the Company shall pay
to the Trustee in cash a sum equal to any interest accrued to the date fixed for
redemption of Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section.
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The Trustee shall not redeem any Securities of a series with sinking fund
moneys or mail any notice of redemption of such Securities by operation of the
sinking fund for such series during the continuance of a default in payment of
interest on such Securities or of any Event of Default (other than an Event of
Default occurring as a consequence of this paragraph) with respect to such
Securities, except that if the notice of redemption of any such Securities shall
theretofore have been mailed in accordance with the provisions hereof, the
Trustee shall redeem such Securities if cash sufficient for that purpose shall
be deposited with the Trustee for that purpose in accordance with the terms of
this Article. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of such
Securities; provided, however, that in case such Event of Default or default
shall have cured or waived as provided herein, such moneys shall thereafter be
applied on the next sinking fund payment date for such Securities on which such
moneys may be applied pursuant to the provisions of this Section.
ARTICLE THIRTEEN
HOLDERS' MEETINGS
SECTION 13.01. Purposes of Meetings. A meeting of Holders of Securities of
any or all series may be called at any time and from time to time pursuant to
the provisions of this Article for any one or more of the following purposes.
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Holders pursuant to any of the provisions of Article Five;
(2) to remove the Trustee and appoint a successor trustee pursuant to
the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the Securities
of any or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
SECTION 13.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Holders of Securities of any or all series to take any action
specified in Section 13.01, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Holders of Securities of any or all series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed not less than 20
nor more than 60 days prior to the date fixed for the meeting to Holders of
Securities of each series affected.
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SECTION 13.03. Call of Meetings by Company or Holders.
In case at any time the Company, pursuant to a Board Resolution, or the
Holders of not less than 10% in aggregate principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
Holders of Securities of the series of which they hold not less than 10%, to
take any action authorized in Section 13.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or the Holders in the amount above
specified may determine the time and the place for such meeting and may call
such meeting to take any action authorized in Section 13.01 by mailing notice
thereof as provided in Section 13.02.
SECTION 13.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders, a Person shall be a
Holder at the close of business two Business Days prior to such meeting of one
or more Securities with respect to which such meeting is being held or be a
Person appointed by an instrument in writing as proxy by such a Holder. The only
Persons who will be entitled to be present or to speak at any meeting of Holders
shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 13.05. Regulations.
Notwithstanding any other provision of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of Holders,
in regard to the appointment of proxies, the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 1.04 and the appointment of any proxy shall be
proved in the manner specified in said Section 1.04; provided, however, that
such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
hereinbefore or in said Section 1.04 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or the Holders as provided in Section 13.03, in which case the Company
or the Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting may be elected by vote of the Holders of a majority in principal
amount of the Securities with respect to which such meeting is being held
represented at the meeting and entitled to vote.
At any meeting each Holder or proxy shall be entitled to one vote for each
$1,000 principal amount of Securities with respect to which such meeting is
being held or represented by him and Outstanding (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Outstanding"); provided, however, that no vote shall be cast or
counted at any meeting in respect of any Security challenged as not Outstanding
and ruled by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Securities held
by him or instruments in writing
57
as aforesaid duly designating him as the Person to vote on behalf of other
Holders. Any meeting of Holders duly called pursuant to the provisions of
Section 13.02 or 13.03 may be adjourned from time to time by vote of the Holders
(or proxies for such Holders) of a majority of the Securities with respect to
which such meeting is being held represented at the meeting, and entitled to
vote, and the meeting may be held as so adjourned without further notice.
Notwithstanding anything in this Section to the contrary, at any meeting of
Holders, the presence of Persons holding or representing Securities with respect
to which such meeting is being held in an aggregate principal amount sufficient
under the appropriate provision of this Indenture to take action on any business
for the transaction of which such meeting was called shall constitute a quorum,
but, if less than a quorum is present, the Persons holding or representing a
majority in aggregate principal amount of such Securities represented at the
meeting may adjourn such meeting with the same effect, for all intents and
purposes, as though a quorum had been present.
SECTION 13.06. Voting.
The vote upon any resolution submitted to any meeting of Holders of
Securities with respect to which such meeting is being held shall be by written
ballots on which shall be subscribed the signature of such Holders or proxies
and the serial number or numbers and the principal amounts of the Securities
held or represented by them. The chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Holders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 13.02. The record shall be signed and
verified by the affidavits of the chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 13.07. Revocation by Holders.
At any time prior to (but not after) the evidencing to the Trustee, in the
manner provided in Section 1.04, of the taking of any action by the Holders of
the percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action, any Person who is the Holder of a
Security the serial number of which is included in the Securities, the Holders
of which have consented to such action may, by filing written notice with the
Trustee at the Corporate Trust Office and upon proof of holding as provided in
Section 1.04, revoke such consent so far as concerns such Security, or if such
Security is a Predecessor Security, so far as concerns the portion of such
Security of which such Persons is the Holder. Except as aforesaid any such
consent given by the Holder of any Security shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Security and of any
58
Security issued in exchange therefor or in lieu thereof, irrespective of whether
or not any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the
Securities specified in this Indenture in connection with such action shall be
conclusively binding upon the Parent Guarantor, the Company, the Trustee and the
Holders of all the Securities.
SECTION 13.08. No Delay.
Nothing in this Article contained shall be deemed or construed to require
any delay in the exercise of any right or rights conferred upon or reserved to
the Trustee or to the Holders under any of the provisions of this Indenture or
of the Securities by reason of any call of a meeting of Holders or any rights
expressly or impliedly conferred hereunder to make such call.
SECTION 13.09. Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Holders in person or by agent or proxy appointed in writing, or
(b) by the record of such Holders voting in favor thereof at any meeting of such
Holders duly called and held in accordance with the provisions of this Article
Thirteen, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of such Holders.
ARTICLE FOURTEEN
DEFEASANCE
SECTION 14.01. Applicability of Article. The provisions of this Article
shall be applicable to Securities of a series except as otherwise specified
pursuant to Section 3.01 for Securities of such series.
SECTION 14.02. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations. At the Company's option, either (a) the Company shall be deemed to
have been Discharged (as defined below) from its obligations with respect to
Securities of any series ("Legal Defeasance Option") or (b) the Company shall
cease to be under any obligation to comply with any term, provision or condition
set forth in Sections 8.01, 10.04 and 10.05 with respect to Securities of any
series (and, if so specified pursuant to Section 3.01, any other obligation of
the Company or restrictive covenant added for the benefit of such series
pursuant to Section 3.01) ("Covenant Defeasance Option") at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series (i) money in an amount, or (ii) U.S. Government
Obligations (as defined below) which through the payment of interest and
principal in respect thereof in accordance with their terms will
59
provide, not later than one day before the due date of any payment, money
in an amount, or (iii) a combination of (i) and (ii), sufficient, in the
opinion (with respect to (i) and (ii)) of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of and premium,
if any, and interest on, the Outstanding Securities of such series on the
dates such installments of interest or principal and premium are due;
(2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 6.08 and for purposes of the Trust Indenture Act with respect to
the Securities of any series;
(3) such deposit will 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;
(4) no Event of Default or event (including such deposit) which, with
notice or lapse of time or both, would become an Event of Default with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit and, with respect to the legal
defeasance option only, no Event of Default under Section 5.01(e) or event
which with the giving of notice or lapse of time, or both, would become an
Event of Default under Section 5.01(e) shall have occurred and be
continuing on the 91st day after such date; and
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel or a ruling from the Internal Revenue Service to the effect that
the Holders of the Securities of such series will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit,
defeasance or Discharge.
Notwithstanding the foregoing, if the Company exercises its covenant
defeasance option and an Event of Default under Section 5.01(e) or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 5.01(e) shall have occurred and be continuing on the 91st
day after the date of such deposit, the obligations of the Company referred to
under the definition of covenant defeasance option with respect to such
Securities shall be reinstated.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except (A) the rights of Holders of Securities of such series to receive,
from the trust fund described in clause (1) above, payment of the principal of
(and premium, if any) and interest on such Securities when such payments are
due, (B) the Company's obligations with respect to the Securities of such series
under Sections 3.05, 3.06, 3.07, 10.02 and 14.03 and to the Trustee under
Section 6.07 and (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder.
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"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States for the payment of which its full faith and
credit is pledged, or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. 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 of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 14.03. Deposited Moneys and U.S. Government Obligations to Be Held
in Trust. All moneys and U.S. Government Obligations deposited with the Trustee
pursuant to Section 14.02 in respect of Securities of a series shall be held in
trust and applied by it, in accordance with the provisions of such Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon for principal (and premium, if any) and interest, if any, but such money
need not be segregated from other funds except to the extent required by law.
SECTION 14.04. Repayment to Company. Any money deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment of
the principal of, premium or interest on any Security 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 its request or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured 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; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
ARTICLE FIFTEEN
GUARANTEES
SECTION 15.01. Guarantees. The Parent Guarantor hereby unconditionally
guarantees (the "Guarantee", and together with the other guarantees of the
Securities, if any, the "Guarantees"), jointly and severally with each other
Guarantor of the Securities of that series, if any, to each Holder of such
Securities authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, such Securities or the obligations of the Company hereunder or
thereunder, (i) the due
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and punctual payment of the principal of and any premium or interest on such
Securities, whether at Maturity or on an Interest Payment Date, by acceleration,
pursuant to an offer to purchase such Securities or otherwise, and interest on
the overdue principal of and interest, if any, on such Securities, if lawful,
and all other obligations of the Company to the Holders of such Securities or
the Trustee hereunder or thereunder shall be promptly paid in full, all in
accordance with the terms hereof and thereof including all amounts payable to
the Trustee under Section 6.07 hereof, and (ii) in case of any extension of time
of payment or renewal of any such Securities or any of such other obligations,
the same shall be promptly paid in full when due or to be performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
If the Company fails to make any payment when due of any amount so
guaranteed for whatever reason, the Parent Guarantor of the Securities of that
series shall be obligated, jointly and severally with each other such Guarantor,
if any, to pay the same immediately. The Parent Guarantor hereby agrees that its
obligations hereunder shall be continuing, absolute and unconditional,
irrespective of, and shall be unaffected by, the validity, regularity or
enforceability of the Securities, this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities or the
Trustee with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of such Guarantor. The Parent Guarantor hereby waives diligence,
presentment, demand of payment, demand of performance, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, the benefit of discussion,
protest, notice and all demand whatsoever and covenants that its Guarantee shall
not be discharged except by complete performance of the obligations contained in
the Securities guaranteed by such Guarantee, in this Indenture and in this
Article Fifteen. If any Holder of Securities of a series guaranteed hereby or
the Trustee is required by any court or otherwise to return to the Company or
the Parent Guarantor of such Securities, or any custodian, trustee, liquidator
or other similar official acting in relation to the Company or the Parent
Guarantor, any amount paid by the Company or the Parent Guarantor of such
Securities to the Trustee or such Holder, this Article Fifteen, to the extent
theretofore discharged with respect to the Guarantee of such Securities, shall
be reinstated in full force and effect. The Parent Guarantor agrees that it
shall not be entitled to any right of subrogation in relation to the Holders of
Securities of a series guaranteed hereby by the Parent Guarantor in respect of
any obligations guaranteed hereby by such Guarantee until payment in full of all
such obligations. The Parent Guarantor further agrees that, as between the
Parent Guarantor, on the one hand, and the Holders of Securities of a series
guaranteed hereby by the Parent Guarantor and the Trustee on the other hand, (i)
the maturity of the obligations guaranteed hereby by such Guarantee may be
accelerated as provided in Article Five hereof for the purposes of the
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby and (ii) in
the event of any acceleration of such obligations as provided in Article Five
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Parent Guarantor, jointly and severally with any other
Guarantor of such Securities, if any, for the purpose of this Article Fifteen.
In addition, without limiting the foregoing, upon the effectiveness of an
acceleration under Article Five, the Trustee may make a demand for payment on
the Securities under the Guarantee thereof not discharged.
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With respect to the Guarantee, the Parent Guarantor shall be subrogated to
all rights of the Holder of any Securities guaranteed hereby by such Guarantee
against the Company in respect of any amounts paid to such Holder by the Parent
Guarantor pursuant to the provisions of such Guarantee; provided that the Parent
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the principal of and
interest on all such Securities shall have been paid in full.
The Guarantee provided in this Section 15.01 shall not be valid or become
obligatory for any purpose with respect to a Security until the certificate of
authentication on such Security shall have been signed by the Trustee or any
duly appointed agent.
SECTION 15.02. Obligations of the Guarantor Unconditional. Nothing
contained in this Article Fifteen or elsewhere in this Indenture or in any
Security is intended to or shall impair, as between the Parent Guarantor and the
Holders of the Securities guaranteed by the Guarantee, the obligations of the
Parent Guarantor, which are absolute and unconditional, to pay to such Holders
the principal of and interest on such Securities as and when the same shall
become due and payable in accordance with the provisions of the Guarantee or is
intended to or shall affect the relative rights of such Holders and creditors of
the Parent Guarantor, nor shall anything herein or therein prevent the Trustee
or any such Holder from exercising all remedies otherwise permitted by
applicable law upon Default under this Indenture in respect of cash, property or
securities of the Parent Guarantor received upon the exercise of any such
remedy;
Upon any distribution of assets of the Parent Guarantor referred to in this
Article Fifteen, the Trustee, subject to the provisions of Sections 6.01 and
6.03, and the Holders of the Securities guaranteed hereby by the Parent
Guarantor shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
such Holders, for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of other indebtedness of the
Parent Guarantor, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article Fifteen.
SECTION 15.03. Article Fifteen Not To Prevent Events of Default. The
payment of principal or interest on the Securities of any series by reason of
any provision in this Article Fifteen shall not be construed as preventing the
occurrence of an Event of Default.
SECTION 15.04. Execution and Delivery of Guarantee. To evidence the
Guarantee, the Parent Guarantor and each other Guarantor, if any, shall endorse
a Guarantee Notation, substantially in the form of Exhibit A hereto, on each
Security authenticated and delivered by the Trustee that is guaranteed by the
Guarantee.
The Parent Guarantor hereby agrees that its Guarantee shall remain in full
force and effect notwithstanding any failure to endorse the Guarantee Notation
on each such Security.
If an officer whose signature is on the Securities guaranteed hereby no
longer holds that office at the time the Trustee authenticates the Security on
which a notation of the Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
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The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee thereof.
SECTION 15.05. Ranking of Guarantee. Unless otherwise set forth in the
applicable Board Resolution or supplemental indenture establishing the terms of
the Securities of a series, the obligations of the Parent Guarantor under the
Guarantee will rank on parity with all other unsecured, unsubordinated
indebtedness of the Parent Guarantor.
SECTION 15.06. Waiver of Jury Trial. Each of the Company, the Parent
Guarantor and the Trustee hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this agreement, the Securities or the
transactions contemplated hereby.
* * * * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
Dated: L-3 COMMUNICATIONS CORPORATION, AS ISSUER
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
L-3 COMMUNICATIONS HOLDINGS, INC., AS
GUARANTOR
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
THE BANK OF NEW YORK
By_______________________________________
EXHIBIT A
[FORM OF NOTATION OF SECURITY
RELATING TO GUARANTEE]
GUARANTEE
[Name of Guarantor] (hereinafter referred to as the "Guarantor", which term
includes any successor person under the Indenture (the "Indenture") referred to
in the Security upon which this notation is endorsed (the "Endorsed Security"))
has unconditionally guaranteed (i) the due and punctual payment of the principal
of, premium, if any, and interest on the Endorsed Security and all other
Securities of the same series as the Endorsed Security (the "Guaranteed
Securities"), whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of, premium, if any, and
interest, if any, on the Guaranteed Securities, to the extent lawful, and the
due and punctual performance of all other obligations of the Company to the
Holders of Guaranteed Securities or the Trustee all in accordance with the terms
set forth [in Article Fifteen of the Indenture] [in the supplemental indenture
dated _________ __, 200_ (the "Supplemental Indenture")] and (ii) in case of any
extension of time of payment or renewal of any Guaranteed Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Indenture.
The obligations of the Guarantor to the Holders of Guaranteed Securities
and to the Trustee pursuant to the Guarantee evidenced hereby and the Indenture
are expressly set forth in [Article Fifteen of the Indenture] [Article __ of the
Supplemental Indenture] and reference is hereby made to such [Indenture]
[Supplemental Indenture] for the terms of such Guarantee.
No stockholder, officer, director or incorporator, as such, past, present
or future, of the Guarantor shall have any personal liability under the
Guarantee evidenced hereby by reason of his or its status as such stockholder,
officer, director or incorporator.
The Guarantee evidenced hereby shall not be valid or obligatory for any
purpose until the certificate of authentication of the Guaranteed Securities
shall have been executed by the Trustee under the Indenture by the manual
signature of one of the Trustee's authorized signatories.
[Name of Guarantor]
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
