Exhibit 4.1
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FARMLAND INDUSTRIES, INC., as Issuer
and
THE CHASE MANHATTAN BANK, as Trustee
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INDENTURE
Dated as of , 1998
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Providing for Issuance of
Debt Securities in Series
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Reconciliation and tie between Indenture, dated as of ____________ ___, 1998,
and the Trust Indenture Act of 1939, as amended.
Trust Indenture Act of 1939 Section: Indenture Section:
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310(a)(1) 6.12
(a)(2) 6.12
(a)(3) TIA
(a)(4) Not applicable, TIA
(a)(5) 6.10; 6.12; TIA
311(a) TIA
(b) TIA
312(a) 6.8; 6.16
(b) 16; TIA
(c) 6.16; TIA
313(a) 6.7; 8.7; TIA
(b) TIA
(c) 1.6; TIA
(d) TIA
314(a) 9.6; 9.7; TIA
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
315(a) 6.1; TIA
(b) 6.6
(c) TIA
(d)(1) 6.1; TIA
(d)(2) 6.1; TIA
(d)(3) 6.1; TIA
(e) TIA
316(a)(last sentence) 1.1
(a)(1)(A) 5.2; 5.8
(a)(1)(B) 5.7
(b) 5.9; 5.10
(c) 1.4; TIA
317(a)(1) 5.3
(a)(2) 5.4
(b) 9.3
318(a) 1.11
(b) TIA
(c) 1.11; TIA
This reconciliation and tie section does not constitute part of the Indenture.
Table of Contents
Page
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ARTICLE 1.
Definitions and Other Provisions of General Application
Section 1.1 Definitions..................................................................1
Section 1.2 Compliance Certificates and Opinions.........................................7
Section 1.3 Form of Documents Delivered to Trustee.......................................8
Section 1.4 Acts of Holders..............................................................9
Section 1.5 Notices, etc., to Trustee and Company.......................................10
Section 1.6 Notice to Holders; Waiver...................................................10
Section 1.7 Headings and Table of Contents..............................................10
Section 1.8 Successors and Assigns......................................................11
Section 1.9 Separability................................................................11
Section 1.10 Benefits of Indenture.......................................................11
Section 1.11 Governing Law...............................................................11
Section 1.12 Legal Holidays..............................................................11
Section 1.13 Incorporators, Stockholders, Officers and Directors of the Company
Exempt from Individual Liability............................................12
Section 1.14 Counterparts................................................................12
ARTICLE 2.
Security Forms
Section 2.1 Forms Generally.............................................................12
Section 2.2 Form of Trustee's Certificate of Authentication.............................13
Section 2.3 Securities in Global Form...................................................13
ARTICLE 3.
The Securities
Section 3.1 Amount Unlimited; Issuable in Series........................................14
Section 3.2 Denominations...............................................................16
Section 3.3 Execution, Authentication, Delivery and Dating..............................16
Section 3.4 Temporary Securities........................................................19
Section 3.5 Registration, Registration of Transfer and Exchange.........................19
Section 3.6 Replacement Securities......................................................21
Section 3.7 Payment of Interest; Interest Rights Preserved..............................22
Section 3.8 Persons Deemed Owners.......................................................23
Section 3.9 Cancellation................................................................24
Section 3.10 Computation of Interest.....................................................24
Section 3.11 CUSIP Numbers...............................................................24
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ARTICLE 4.
Satisfaction and Discharge; Defeasance
Section 4.1 Termination of Company's Obligations Under the Indenture....................25
Section 4.2 Application of Trust Funds..................................................26
Section 4.3 Applicability of Defeasance Provisions......................................26
Section 4.4 Defeasance and Discharge....................................................26
Section 4.5 Covenant Defeasance.........................................................27
Section 4.6 Conditions to Defeasance or Covenant Defeasance.............................27
Section 4.7 Deposited Money and Government Obligations to be Held in Trust..............29
Section 4.8 Transfers and Distribution at Company Request...............................29
ARTICLE 5.
Defaults and Remedies
Section 5.1 Events of Default...........................................................30
Section 5.2 Acceleration; Rescission and Annulment......................................31
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.............32
Section 5.4 Trustee May File Proofs of Claim............................................32
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.................33
Section 5.6 Delay or Omission not Waiver................................................33
Section 5.7 Waiver of Past Defaults.....................................................33
Section 5.8 Control by Majority.........................................................33
Section 5.9 Limitation on Suits by Holders..............................................33
Section 5.10 Rights of Holders to Receive Payment........................................34
Section 5.11 Application of Money Collected..............................................34
Section 5.12 Restoration of Rights and Remedies..........................................35
Section 5.13 Rights and Remedies Cumulative..............................................35
Section 5.14 Waiver of Usury, Stay or Extension Laws.....................................35
Section 5.15 Undertaking for Costs.......................................................35
ARTICLE 6.
The Trustee
Section 6.1 Certain Duties and Responsibilities.........................................36
Section 6.2 Rights of Trustee...........................................................37
Section 6.3 Trustee May Hold Securities.................................................38
Section 6.4 Money Held in Trust.........................................................38
Section 6.5 Trustee's Disclaimer........................................................38
Section 6.6 Notice of Defaults..........................................................39
Section 6.7 Reports by Trustee to Holders...............................................39
Section 6.8 Securityholder Lists........................................................39
Section 6.9 Compensation and Indemnity..................................................39
Section 6.10 Replacement of Trustee......................................................40
Section 6.11 Acceptance of Appointment by Successor......................................41
Section 6.12 Eligibility; Disqualification; Conflicting Interest.........................43
Section 6.13 Merger, Conversion, Consolidation or Succession to Business.................43
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Section 6.14 Appointment of Authenticating Agent.........................................43
Section 6.15 Trustee's Application for Instructions from the Company.....................45
Section 6.16 Preservation of Information; Communications to Holders......................45
ARTICLE 7.
Consolidation, Merger or Sale by the Company
Section 7.1 Consolidation, Merger or Sale of Assets Permitted...........................46
ARTICLE 8.
Supplemental Indentures
Section 8.1 Supplemental Indentures Without Consent of Holders..........................46
Section 8.2 With Consent of Holders.....................................................47
Section 8.3 Compliance with Trust Indenture Act.........................................48
Section 8.4 Execution of Supplemental Indentures........................................48
Section 8.5 Effect of Supplemental Indentures...........................................49
Section 8.6 Reference in Securities to Supplemental Indentures..........................49
Section 8.7 Notice to Holders...........................................................49
ARTICLE 9.
Covenants
Section 9.1 Payment of Principal, Premium, if any, and Interest.........................49
Section 9.2 Maintenance of Office or Agency.............................................49
Section 9.3 Money for Securities to Be Held in Trust; Unclaimed Money...................50
Section 9.4 Corporate Existence.........................................................51
Section 9.5 Insurance...................................................................51
Section 9.6 Reports by the Company......................................................52
Section 9.7 Annual Review Certificate; Notice of Default................................52
Section 9.8 Provision of Financial Statements...........................................52
Section 9.9 Limitation on Liens.........................................................53
Section 9.10 Ownership of Material Subsidiary Stock........................................
Section 9.11 Waiver of Certain Covenants.................................................55
ARTICLE 10.
Redemption
Section 10.1 Applicability of Article....................................................55
Section 10.2 Election to Redeem; Notice to Trustee.......................................55
Section 10.3 Selection of Securities to Be Redeemed......................................56
Section 10.4 Notice of Redemption........................................................56
Section 10.5 Deposit of Redemption Price.................................................57
Section 10.6 Securities Payable on Redemption Date.......................................57
Section 10.7 Securities Redeemed in Part.................................................57
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ARTICLE 11.
Sinking Funds
Section 11.1 Applicability of Article....................................................58
Section 11.2 Satisfaction of Sinking Fund Payments with Securities.......................58
Section 11.3 Redemption of Securities for Sinking Fund...................................58
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INDENTURE, dated as of ____________ ___, 1998, from FARMLAND INDUSTRIES,
INC., a Kansas corporation (the "Company"), to THE CHASE MANHATTAN BANK, as
Trustee (the "Trustee").
RECITALS
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its debentures, notes or other
evidences of indebtedness (the "Securities") to be issued in one or more series
as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be a part of this Indenture and, to the extent applicable, shall
be governed by such provisions.
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
ratable benefit of the Holders of the Securities or of any series thereof, as
follows:
ARTICLE 1.
Definitions and Other Provisions of General Application
Section 1.1 Definitions.
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such principles as are generally
accepted at the date 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.
"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 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" or "Board of Directors" means the Board of Directors of the Company,
the Executive Committee thereof or any other duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Corporate Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or particular location are
authorized or obligated by law, executive order or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the Company in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" means such
successor corporation.
"Company Order" and "Company Request" mean, respectively, a written order or
request signed in the name of the Company by the Chairman of the Board, the
President, any Executive Vice President or any Senior Vice President, signing
alone, by any Vice President signing together with the Treasurer, any Assistant
Treasurer, the Corporate Secretary or any Assistant Secretary of the Company,
or, with respect to Sections 3.3, 3.4, 3.5 and 6.1, any other employee of the
Company named in an Officers' Certificate and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in which
at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Trust Services,
or at any other time at such other address as the Trustee may designate from
time to time by notice to the Company.
"corporation" includes corporations, associations, partnerships, limited
liability companies, joint stock companies and business trusts.
"Default" means any event which is, or after notice or passage of time, or
both, would be, an Event of Default.
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"Depositary", when used with respect to the Securities of or within any
series issuable or issued in whole or in part in global form, means the Person
designated as Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter shall mean or include each Person
which is then a Depositary hereunder, and if at any time there is more than one
such Person, shall be a collective reference to such Persons.
"Dollar" or "$" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"Government Obligations" means securities which 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, each of which are not callable or redeemable at the option of the issuer
thereof, and shall also include (A) a depositary receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depositary receipt,
provided, however, that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
Government Obligation evidenced by such depositary receipt, (B) securities that
are backed by United States government obligations as collateral under an
arrangement by which the interest and principal payments on the collateral
generally flow immediately through to the holder of the security, and (C) money
market funds, including, without limitation, The Chase Manhattan Bank VISTA
Money Market Funds, so long as such funds are rated Aaa by Moody's (so long as
Xxxxx'x is a rating agency) and AAAm by Standard & Poor's (so long as Standard &
Poor's is a rating agency), and any other funds for which the Trustee or an
Affiliate of the Trustee serves as an investment advisor, administrator,
shareholder servicing agent and/or custodian or subcustodian, provided that any
shares of such funds have a credit rating of at least Aaa by Moody's (so long as
Xxxxx'x is a rating agency) and AAAm by Standard & Poor's (so long as Standard &
Poor's is a rating agency) and notwithstanding that the Trustee or an Affiliate
of the Trustee charges and collects fees and expenses from such funds for
services rendered. The Company hereby specifically authorizes the Trustee or an
Affiliate of the Trustee to charge and collect all fees and expenses from such
funds for services rendered to such funds.
"Holder" means a Person in whose name a Security is registered on the
Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented, amended or modified by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and, unless the context otherwise requires, shall include the terms of a
particular series of Securities established as contemplated by Section 3.1.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
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"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Material Subsidiary" means, at any particular time, any Subsidiary that,
together with any Subsidiaries of such Subsidiary (i) accounted for more than
five percent (5%) of the consolidated sales of the Company for its most recently
completed fiscal year, or (ii) owned more than five percent (5%) of the
consolidated assets of the Company as at the end of such fiscal year, all as
calculated in accordance with generally accepted accounting principles.
"Maturity", where used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board of Directors, the President, any
Executive Vice President, any Senior Vice President, any Vice President, the
Corporate Secretary, any Assistant Secretary, the Treasurer or any Assistant
Treasurer of the Company.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, any Executive Vice President or any Senior Vice President,
signing alone, or by any Vice President signing together with the Corporate
Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of
the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who may be
(a) counsel for the Company or (b) other counsel designated by the Company. Any
counsel for the Company may be an employee of the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the stated principal thereof to be due and payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, 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 segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided, however, that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture and such Securities or provisions
therefor satisfactory to the Trustee have been made;
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(iii) Securities, except to the extent provided in Sections 4.4 and
4.5, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article 4; and
(iv) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company; provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether
sufficient funds are available for redemption or for any other purpose, and
for the purpose of making the calculations required by Section 313 of the
Trust Indenture Act, the principal amount of any Original Issue Discount
Securities that may be counted in making such determination or calculation
and that shall be deemed to be Outstanding for such purpose shall be equal
to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.2,
and Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or 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 and Securities
so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium, if any, or interest on any Securities on behalf of the
Company.
"Periodic Offering" means an offering of Securities of a series from time to
time, the specific terms of which Securities, including, without limitation, the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Stated Maturities thereof, the
original issue date or dates thereof, the redemption provisions, if any, with
respect thereto, and any other terms specified as contemplated by Section 3.1
with respect thereto, are to be determined by the Company upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
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"Place of Payment", when used with respect to the Securities of or within
any series, means the place or places where, subject to the provisions of
Section 9.2, the principal of, premium, if any, and interest on such Securities
are payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed in
whole or in part, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, shall mean the
chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any senior vice president, any vice
president, any assistant vice president, the secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer, any trust officer, the controller, any assistant controller, or any
other officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
and also means, with respect to a particular corporate trust matter, any other
officer to whom such corporate trust matter is referred because of his knowledge
of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Security or Securities of the
Company issued, authenticated and delivered under this Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
3.7.
"Stated Maturity", when used with respect to any Security or any installment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which the Company at the time owns or
controls, directly or indirectly, more than 50% of the shares of outstanding
stock having general voting power under ordinary circumstances to elect a
majority of the Board of Directors of such corporation (irrespective of whether
or not at the time stock of any other class or classes of such
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corporation shall have or might have voting power by reason of the happening of
any contingency).
"Trinidad Venture" means the joint venture organized by the Company and the
Mississippi Chemical Corporation to acquire, own, develop, construct and/or
operate a plant to produce anhydrous ammonia and related products (including
urea) in The Republic of Trinidad and Tobago.
"Trust Indenture Act" means the Trust Indenture Act of 1939 and any
reference herein to such Act or a particular provision thereof shall mean such
Act or provision, as the case may be, as amended or replaced from time to time
or as supplemented from time to time by rules or regulations adopted by the
Commission under or in furtherance of the purposes of such Act or provision, as
the case may be.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor Trustee replaces it pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" means or includes such
successor Trustee and if, at any time, there is more than one Trustee, "Trustee"
as used with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of that series.
"United States" means, unless otherwise specified with respect to the
Securities of any series as contemplated by Section 3.1, the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
(b) The following terms shall have the meanings specified in the Sections
referred to opposite such term below:
Term Section
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"Act" 1.4(a)
"Bankruptcy Law" 5.1
"Consolidated Net Worth" 9.9(b)
"covenant defeasance" 4.5
"Custodian" 5.1
"Defaulted Interest" 3.7(b)
"defeasance" 4.4
"Event of Default" 5.1
"Exchange Act" 9.6(a)
"Register" 3.5
"Registrar" 3.5
Section 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent,
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if any, have been complied with, except that in the case of any such application
or request as to which the furnishing of such documents or any of them is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Sections 2.3,
3.3 and 9.7) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant 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 condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or 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 the 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 stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations as 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.
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Section 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of
the Trustee and the Company if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other reasonable manner which the Trustee deems sufficient.
(c) The ownership, principal amount and serial numbers of Securities held by
any Person, and the date of commencement of such Person's holding the same,
shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix a record date for the determination of Holders entitled to make or give
any request, demand, authorization, direction, notice, consent or waiver or to
take any other Act authorized or permitted to be made, given or taken by the
Holders, but the Company shall have no obligation to do so. If such a record
date is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before, on or after such record date, but only
the Holders of record at the close of business on such record date (or their
duly designated proxies) shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date. No
such request, demand, authorization, direction, notice, consent, waiver or other
Act shall be valid or effective if made, given or taken more than 90 days after
such record date.
9
Section 1.5 Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at Farmland Industries, Inc., 0000 Xxxxx Xxx Xxxxxxxxxx, Xxxxxx Xxxx,
Xxxxxxxx, 00000, Attention: Chief Financial Officer or at any other address
previously furnished in writing to the Trustee by the Company.
Section 1.6 Notice to Holders; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture,
where this Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given if in writing and mailed, first-class postage
prepaid, to each such Holder affected by such event, at his address as it
appears in the Register, within the time prescribed for the giving of such
notice.
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 of Securities. Any notice mailed to a Holder in
the manner herein prescribed shall be conclusively deemed to have been received
by such Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice as provided above,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act required or permitted under this Indenture shall be in the English
language.
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 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.
Section 1.7 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.
10
Section 1.8 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 1.9 Separability.
In case any provision of this Indenture or 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 1.10 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Registrar, any Paying Agent and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 1.11 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS. This Indenture is subject to the Trust Indenture Act and if
any provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required under the Trust Indenture Act to be part of
and govern this Indenture, the latter provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded.
Section 1.12 Legal Holidays.
Unless otherwise specifically provided for with respect to any series of
Securities, in any case where any Interest Payment Date, Redemption Date,
sinking fund payment date, Stated Maturity or Maturity of any Security shall not
be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or any Security, other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section) payment of principal, premium, if any, or
interest need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on such date; and no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be, to such next succeeding Business Day.
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Section 1.13 Incorporators, Stockholders, Officers and Directors of the
Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of or
contained in this Indenture or of or contained in any Security, or for any claim
based thereon or otherwise in respect thereof, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any successor Person, either directly or through the
Company or any successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Securities.
Section 1.14 Counterparts.
This Indenture may be executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
ARTICLE 2.
Security Forms
Section 2.1 Forms Generally.
The Securities of each series shall be in substantially such form as shall
be established by delivery to the Trustee of an Officers' Certificate 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. Such Securities may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with this
Indenture, or as may be required to comply with the rules of any securities
exchange, all as determined by the officers executing such Securities as
evidenced by their execution of the Securities. If temporary Securities of any
series are issued as permitted by Section 3.4, the form thereof also shall be
established as provided in the preceding sentences. If the forms of Securities
of any series are established by an Officers' Certificate, such Officers'
Certificate shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 3.3 for the authentication and delivery of
such Securities.
The permanent Securities, if any, shall be printed, lithographed or engraved
or produced by any combination of these methods 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.
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Section 2.2 Form of Trustee's Certificate of Authentication.
Subject to Section 6.14, the Trustee's certificate of authentication shall
be in substantially the following form:
This is one of the Securities of a series issued under the within-mentioned
Indenture.
Dated: THE CHASE MANHATTAN
BANK, as Trustee
By:
------------------------
Authorized Signatory
Section 2.3 Securities in Global Form.
If Securities of or within a series are issuable in whole or in part in
temporary or permanent global form, as specified as contemplated by Section 3.1,
then, notwithstanding clause (8) of Section 3.1(b) and the provisions of Section
3.2, any such Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby, shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 3.3
or 3.4. Subject to the provisions of Sections 3.3, 3.4 and 3.5, the Trustee
shall deliver and redeliver any Security in global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing (which need not comply with Section 1.2 hereof and need not be
accompanied by an Opinion of Counsel).
The provisions of the last paragraph of Section 3.3 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
or increase in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last paragraph of Section 3.3.
Every Security in global form authenticated and delivered hereunder shall
bear an appropriate legend in substantially the following form:
THIS IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE DATED AS
OF __________ ___, 1998, FROM FARMLAND INDUSTRIES, INC. TO THE CHASE
MANHATTAN BANK, AS TRUSTEE (THE "INDENTURE"), AND
13
IS REGISTERED IN THE NAME OF A DEPOSITORY (AS DEFINED IN THE INDENTURE) OR A
NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE TO THE DEPOSITORY, OR BY THE
DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF
SUCH DEPOSITORY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE 3.
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
from time to time in one or more series.
(b) The following matters shall be established and (subject to Section 3.3)
set forth, or determined in the manner provided, in an Officers' Certificate, a
Board Resolution or one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other Securities);
14
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(which limit shall not pertain to (i) Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.4, 3.5, 3.6, 8.6 or 10.7, and
(ii) any Securities which, pursuant to the last paragraph of Section 3.3,
are deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal of the Securities of the
series is payable or the method of determination thereof;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record
Date, if any, for the interest payable on any Security of such series on any
Interest Payment Date;
(5) the place or places where, subject to the provisions of Section
9.2, the principal of, premium, if any, and interest, if any, on Securities
of the series shall be payable;
(6) the date or dates on which or the period or periods within which,
the price or prices at which, and the other terms and conditions upon which,
Securities of the series may be redeemed, in whole or in part, at the option
of the Company and, if other than as provided in Section 10.3, the manner in
which the particular Securities of such series (if less than all Securities
of such series are to be redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or upon the happening of a specified event or at the option of a
Holder thereof and the date or dates on which or the period or periods
within which, the price or prices at which, and the other terms and
conditions upon which, Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(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 the Securities of the series which shall be payable upon
declaration of acceleration thereof pursuant to Section 5.2 or the method by
which such portion shall be determined;
(10) if other than as provided in Section 3.7, the Person to whom any
interest on any Security of the series shall be payable, and the extent to
which, or the manner in which (including any certification requirement and
other terms and conditions under which), any interest payable on a temporary
or permanent global Security on an Interest
15
Payment Date will be paid if other than in the manner provided in
Section 2.3 and Section 3.4, as applicable;
(11) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(12) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.1 or covenants of the Company set forth
in Article 9 pertaining to the Securities of the series;
(13) if other than as provided in Sections 4.4 and 4.5, the means of
defeasance or covenant defeasance as may be specified for the Securities of
or within the series;
(14) if other than the Trustee, the identity of the Registrar and any
Paying Agent;
(15) whether Securities of the series shall be issued in whole or in
part in temporary or permanent global form and, if so, (i) the initial
Depositary for such global Securities and (ii) if other than as provided in
Section 3.4 or 3.5, as applicable, whether and the circumstances under which
beneficial owners of interests in any Securities of the series in temporary
or permanent global form may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination; and
(16) any other terms of Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture), including
without limitation any terms which may be required by or advisable under
United States laws or regulations or advisable in connection with the
marketing of Securities of the series.
(c) All Securities of any one series shall be substantially identical except
as to denomination and the rate or rates of interest, or method of calculating
such rate or rates of interest, if any, and Stated Maturity, the date from which
interest, if any, shall accrue and except as may otherwise be provided in or
pursuant to an Officers' Certificate or a Board Resolution pursuant to this
Section 3.1 or in an indenture supplemental hereto.
(d) If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be certified by the Corporate Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series, and, if requested by the Trustee, an
appropriate record of any action taken pursuant thereto in connection with the
issuance of any Securities of such series shall be delivered to the Trustee
prior to the authentication and delivery thereof. With respect to Securities of
a series subject to a Periodic Offering, such Board Resolution or Officers'
Certificate may provide general terms for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company, or one or more of the Company's agents designated in an Officers'
Certificate, in accordance with the Company Order as contemplated by the first
proviso of the third paragraph of Section 3.3.
16
Section 3.2 Denominations.
Unless otherwise provided as contemplated by Section 3.1, any Securities of
a series shall be issuable in denominations of $1,000 and any integral multiple
thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by the Chairman, the
President, any Executive Vice President, any Senior Vice President or the
Treasurer and attested to by the Corporate Secretary or Assistant Secretary of
the Company. The Company's seal shall be affixed to the Securities, or a
facsimile of such seal shall be reproduced on the Securities. The signatures of
such officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together with
a Company Order for the authentication and the delivery of such Securities, and
the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities; provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, thereafter promptly confirmed in
writing) acceptable to the Trustee as may be specified by or pursuant to a
Company Order delivered to the Trustee prior to the time of the first
authentication of Securities of such series.
If the form or terms of the Securities of a series have been established by
or pursuant to one or more Officers' Certificates or one or more Board
Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 315(a) through (d) of the Trust Indenture Act) shall be
fully protected in relying upon, an Opinion of Counsel stating that,
(1) the forms and terms of such Securities have been established in
conformity with the provisions of this Indenture; and
(2) 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 customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
17
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section 3.1, as the case may be) will have been, established in
conformity with the provisions of this Indenture; and
(y) that such Securities, when (1) executed by the Company, (2)
completed, authenticated and delivered by the Trustee in accordance with
this Indenture, and (3) 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 customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon such Opinion of Counsel and any other
documents delivered pursuant to Sections 2.1 and 3.1, as applicable, at or prior
to the time of the first authentication of Securities of such series unless and
until it has received written notification that such opinion or other documents
have been superseded or revoked. In connection with the authentication and
delivery of Securities of a series subject to a Periodic Offering, the Trustee
shall be entitled to assume that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
If the form or terms of the Securities of a series have been established by
or pursuant to one or more Officers' Certificates or one or more Board
Resolutions as permitted by Sections 2.1 and 3.1, the Trustee shall have the
right to decline to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
If all of the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver the Officers' Certificate or the Board
Resolution otherwise required pursuant to Section 3.1 at or prior to the time of
the authentication of each Security of such series if such Officers' Certificate
or Board Resolution is delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 3.1 that the Securities
of a series are to be issued in whole or in part in global form, then the
Company shall execute and the Trustee shall, in accordance with this Section and
the Company Order with respect to such series, authenticate and deliver one or
more Securities in global form that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of the initially issued
Outstanding Securities of such series to be represented by such Security or
Securities in global form, (ii) shall be registered in the name of the
Depositary for such Security or Securities in global form or the nominee of such
Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction.
18
Each Depositary designated pursuant to Section 3.1 for a Security in global
form must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation. The Trustee
shall have no responsibility to determine if the Depositary is so registered.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefits under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the manual signature of one of the authorized signatories of the
Trustee or an Authenticating Agent. Such signature upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered under this Indenture and is entitled to the benefits
of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided
in Section 3.9 together with a written statement (which need not comply with
Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall not be entitled to the benefits of this
Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute and, upon Company Order, the Trustee shall authenticate and deliver
temporary Securities of such series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor and form, of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities. In
the case of Securities of any series, such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form, each of which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause permanent Securities
of such series to be prepared without unreasonable delay. After preparation of
such permanent Securities, the temporary Securities shall be exchangeable for
such permanent Securities of like tenor upon surrender of the temporary
Securities of such series at the office or agency of the Company pursuant to
Section 9.2 in a Place of Payment for such series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of permanent Securities of the same
series of authorized denominations and of like tenor. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as permanent Securities of such series except as
otherwise specified as contemplated by Section 3.1.
19
Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency to be maintained by the Company in accordance
with Section 9.2 in a Place of Payment, a register (the "Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and the registration of transfers of
Securities. The Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee is
hereby initially appointed "Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at
the office or agency maintained pursuant to Section 9.2 in a Place of Payment
for that series, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series (except a Security in
global form) may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount containing
identical terms and provisions, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in certificated form in the
circumstances described below, a Security in global form representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the 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 Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 3.3, the Company shall
appoint a successor Depositary with respect to the Securities of such series. If
a successor Depositary for the Securities of such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 3.1(b)(15)
shall no longer be effective with respect to the Securities of such series. In
such cases or in the event that a Default or Event of Default shall have
occurred and be continuing, the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of certificated
Securities of such series of like tenor, shall authenticate and deliver
Securities of such series of like tenor in certificated form, in authorized
denominations and in an aggregate principal amount equal to the principal amount
of the Security or Securities of such series of like tenor in global form in
exchange for such Security or Securities in global form.
20
The Company may at any time in its sole discretion determine that Securities
of a series issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event, the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of certificated Securities of such series of like tenor, shall
authenticate and deliver, Securities of such series of like tenor in
certificated form, in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities of such
series of like tenor in global form in exchange for such Security or Securities
in global form.
If specified by the Company pursuant to Section 3.1 with respect to a series
of Securities, the Depositary for such series may surrender a Security in global
form of such series in exchange in whole or in part for Securities of such
series in certificated 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 service charge,
(i) to each Person specified by such Depositary a new certificated
Security or Securities of the same series of like tenor, of any authorized
denomination as requested by such Person in aggregate principal amount equal
to and in exchange for such Person's beneficial interest in the Security in
global form; and
(ii) to such Depositary a new Security in global form of like tenor in
a denomination equal to the difference, if any, between the principal amount
of the surrendered Security in global form and the aggregate principal
amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be cancelled by the
Trustee. Securities in certificated form issued in exchange for a Security in
global form pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depositary for such Security in global
form, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or upon any exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration or transfer or for
exchange shall (if so required by the Company, the Registrar or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar and the Trustee duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or for any
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration or transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 8.6 or 10.7 not involving any transfer.
21
The Company shall not be required (i) to issue, register the transfer of, or
exchange any Securities for a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities of
like tenor and of the series of which such Security is a part selected for
redemption under Section 10.3 and ending at the close of business on the day of
such mailing or (ii) to register the transfer of or exchange any Security so
selected for redemption, in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Section 3.6 Replacement Securities.
If a mutilated Security is surrendered to the Trustee, together with, in
proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them and any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver a
replacement Security of the same series and principal amount and date of
maturity, if the Trustee's requirements are met.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver in lieu of any such destroyed, lost or stolen Security a replacement
Security of the same series and principal amount, containing identical terms and
provisions as the destroyed, lost or stolen Security.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee or the Registrar) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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Section 3.7 Payment of Interest; Interest Rights Preserved.
(a) Unless otherwise specified as contemplated by Section 3.1, interest, if
any, on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency
maintained for such purpose pursuant to Section 9.2; provided, however, that, at
the option of the Company, interest on any series of Securities that bear
interest may be paid (i) by check mailed to the address of the Person entitled
thereto as it shall appear on the Register of Holders of Securities of such
series, or (ii) to the extent specified as contemplated by Section 3.1, by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Holders of Securities of such series.
(b) Unless otherwise specified as contemplated by Section 3.1, any interest
on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of his having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause (1) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series to the Persons in whose names the Securities of
such series (or
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their respective Predecessor Securities) are registered at the close of
business on a specified date in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this clause (2), such manner of payment shall be deemed
practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 3.8 Persons Deemed Owners.
Prior to due presentment of any Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, premium, if any, and
(subject to Sections 3.5 and 3.7) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such global Security, and such Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Security in global form, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 3.9 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and any Paying Agent shall forward to the Trustee
any Securities surrendered to them for replacement, for registration of
transfer, or for exchange or payment. The Trustee shall cancel all Securities
surrendered for replacement, for registration of transfer, or for exchange,
payment, redemption or cancellation and may dispose of cancelled Securities and
issue a certificate of destruction to the Company. The Company may not issue new
Securities to replace Securities that it has paid or delivered to the Trustee
for cancellation, except as expressly permitted in the terms of Securities for
any particular series or as permitted pursuant to the terms of this Indenture.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1, interest on
any Securities of a series that bear interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
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Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (in addition
to the other identification numbers printed on the Securities), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such "CUSIP" 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 "CUSIP" numbers.
ARTICLE 4.
Satisfaction and Discharge; Defeasance
Section 4.1 Termination of Company's Obligations Under the Indenture.
Except as otherwise specified as contemplated by Section 3.1, this Indenture
shall upon a Company Request cease to be of further effect with respect to
Securities of or within any series (except as to any surviving rights of
registration of transfer or exchange of such Securities and replacement of such
Securities which may have been destroyed, lost, stolen or mutilated, as herein
expressly provided for) and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such Securities when:
(1) either
(A) all such Securities theretofore authenticated and delivered (other
than (i) such Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6, and (ii) such
Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 9.3) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) if redeemable at the option of the Company, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,
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and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
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, premium, if any, and interest, with respect
thereto, 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 with respect to such Securities; 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 as
to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustees shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligation of the Company to the
Trustee and any predecessor Trustee under Section 6.9, the obligations of the
Company to any Authenticating Agent under Section 6.14 and, if money shall have
been deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 4.2 and the last paragraph
of Section 9.3 shall survive.
Section 4.2 Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 9.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, 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, premium, if any,
and any interest for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
Section 4.3 Applicability of Defeasance Provisions.
Unless otherwise specified as contemplated by Section 3.1, the provisions of
Sections 4.4 and 4.5, together with the provisions of Sections 4.6 through 4.8
inclusive, shall be applicable to the Securities of or within a series.
26
Section 4.4 Defeasance and Discharge.
The Company, at its option, shall be deemed to have been discharged from its
obligations with respect to the Securities of or within a series on and after
the date the conditions set forth in Section 4.6 are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities which shall thereafter be deemed to be "Outstanding" only for the
purposes this Article 4 and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall on a Company Order execute
proper instruments acknowledging the same), except the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of such Securities to receive, solely from the trust funds described in
Section 4.6(a) and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest, if any, on such Securities
when such payments are due; (b) the rights, powers, trusts, duties and
immunities of the Trustee hereunder; (c) the obligations of the Company and the
Trustee with respect to such Securities under Sections 3.5, 3.6, 9.2 and 9.3;
and (d) this Article 4. Subject to compliance with this Article 4, the Company
may exercise its option under this Section notwithstanding the prior exercise of
its option under Section 4.5 with respect to such Securities.
Section 4.5 Covenant Defeasance.
The Company, at its option, shall be released from its obligations with
respect to the Securities of or within a series under Sections 7.1, 9.4, 9.5,
9.8, 9.9 and 9.10 and, if specified pursuant to Section 3.1, its obligations
under any other covenants, with respect to such Securities on and after the date
the conditions set forth in Section 4.6 are satisfied (hereinafter "covenant
defeasance"), and such Securities shall thereafter be deemed to be not
"Outstanding" for the purposes of any request, demand, authorization, direction,
notice, consent, waiver or other Act of Holders (and the consequences of any
thereof) in connection with Sections 7.1, 9.4, 9.5, 9.8, 9.9 and 9.10, or such
other covenants, but shall continue to be deemed "Outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that, with
respect to such Securities, the Company may omit to comply with and shall have
no liability in respect of any term, provision, condition or limitation set
forth in any such Section or such other covenants, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenants or by reason of any reference in any such Section or such
other covenants to any other provision herein or in any other document or
otherwise and such omission to comply shall not constitute a Default or an Event
of Default under Section 5.1(3) or 5.1(7) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 4.6 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 4.4 or
Section 4.5 to any Securities of or within a series:
(a) The Company shall have deposited or caused to be deposited irrevocably
with the Trustee (or another trustee satisfying the requirements of Section 6.12
who shall agree to comply
27
with, and shall be entitled to the benefits of, the provisions of Sections 4.3
through 4.8 inclusive and the last paragraph of Section 9.3 applicable to the
Trustee, for purposes of such Sections also a "Trustee") as trust funds in trust
for the purpose of making the payments referred to in clauses (x) and (y) of
this Section 4.6(a), specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, with written instructions to
the Trustee as to the application thereof, (A) money in an amount, or (B)
Government Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment referred to in clause (x) or (y) of this
Section 4.6(a), money in an amount or (C) a combination thereof in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, (x) the principal of, premium, if any, and
interest, if any, on such Securities on the Stated Maturity of such principal or
installment of principal or premium or interest and (y) any mandatory sinking
fund payments or analogous payments applicable to such Securities on the days on
which such payments are due and payable in accordance with the terms of this
Indenture and such Securities. Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date or dates in accordance with Article 10 which shall be given effect
in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a Default or Event of Default under this Indenture
or result in a breach or violation of, or constitute a default under, any other
material agreement or instrument to which the Company is a party or by which it
is bound.
(c) No Default or Event of Default under Section 5.1(5) or 5.1(6) with
respect to such Securities shall have occurred and be continuing during the
period commencing on the date of such deposit and ending on the 91st day after
such date (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an exercise by the Company of its option under Section
4.4, the Company shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel to the effect that (i) the Company has received from,
or there has been published by, the Internal Revenue Service a letter ruling, or
there has been published by the Internal Revenue Service a Revenue Ruling, or
(ii) since the date of execution of this Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of such Securities
will not recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times, as would have been the case
if such deposit, defeasance and discharge had not occurred.
(e) In the case of an exercise by the Company of its option under Section
4.5, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
28
(f) The Company shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 4.4 or the covenant defeasance under Section 4.5 (as
the case may be) have been complied with and an Opinion of Counsel to the effect
that (i) either (A) as a result of a deposit pursuant to subsection (a) above
and the related exercise of the Company's option under Section 4.4 or Section
4.5 (as the case may be), registration is not required under the Investment
Company Act of 1940, as amended, by the Company, with respect to the trust funds
representing such deposit or by the Trustee for such trust funds or (B) all
necessary registrations under said Act have been effected, and (ii) after the
91st day after the date of deposit, all money, Government Obligations and other
property deposited pursuant to subsection (a) above (including the proceeds
thereof), will not be subject to any law or proceeding (whether voluntary or
involuntary) in respect of the Company under any Federal or State bankruptcy,
insolvency, reorganization or other similar law, or any decree or order for
relief in respect of the Company issued in connection therewith; provided,
however, such Opinion of Counsel may assume that no Holder of Securities is an
"insider" as defined in Section 101(31) of Title 11 of the United States Code.
(g) Notwithstanding any other provisions of this Section 4.6, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith as contemplated by Section 3.1.
Section 4.7 Deposited Money and Government Obligations to be Held in Trust.
Subject to the provisions of the last paragraph of Section 9.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 4.6 in respect of any Securities of or within any series
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities of
all sums due and to become due thereon in respect of principal, 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 4.8 Transfers and Distribution at Company Request.
To the extent permitted by the Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 76, as amended or interpreted by
the Financial Accounting Standards Board from time to time, or any successor
thereto ("Standard No. 76"), or to the extent permitted by the Commission, the
Trustee shall, from time to time, take one or more of the following actions as
specified in a Company Request:
(a) The Trustee shall retransfer, reassign and deliver to the Company any
securities deposited with the Trustee pursuant to Section 4.6(a), provided that
the Company shall, in substitution therefor, simultaneously transfer, assign and
deliver to the Trustee other Government Obligations appropriate to satisfy the
Company's obligations in respect of the relevant Securities.
29
(b) The Trustee (and any Paying Agent) shall promptly pay to the Company
upon a Company Request any excess money or securities held by them at any time,
including, without limitation, any assets deposited with the Trustee pursuant to
Section 4.6(a) exceeding those necessary for the purposes of Section 4.6(a).
The Trustee shall not take the actions described in subsections (a) and (b) of
this Section 4.8 unless it shall have first received a written report of KPMG
Peat Marwick LLP, or another nationally recognized independent public accounting
firm, (i) expressing their opinion that the contemplated action is permitted by
Standard No. 76 or the Commission, for transactions accounted for as
extinguishment of debt under the circumstances described in paragraph 3.c of
Standard No. 76 or any successor provision, and (ii) verifying the accuracy,
after giving effect to such action or actions, of the computations which
demonstrate that the amounts remaining to be earned on any Government
Obligations deposited with the Trustee pursuant to Section 4.6(a) will be, when
taken together with any money deposited with the Trustee pursuant to Section
4.6(a), sufficient for purposes of Section 4.6(a).
ARTICLE 5.
Defaults and Remedies
Section 5.1 Events of Default.
An "Event of Default" occurs with respect to the Securities of any series if
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is specifically deleted
or modified in or pursuant to the supplemental indenture, Board Resolution or
Officers' Certificate establishing the terms of such series pursuant to this
Indenture:
(1) the Company defaults in the payment of interest on any Security of
that series when the same becomes due and payable and such default continues
for a period of 30 days; or
(2) the Company defaults in the payment of the principal of or premium,
if any, on any Security of that series when the same becomes due and payable
at its Maturity or on redemption or otherwise, or in the payment of a
mandatory sinking fund payment when and as due by the terms of the
Securities of that series; or
(3) the Company defaults in the performance of, or breaches, any
covenant or warranty of the Company in this Indenture with respect to any
Security of that series (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and such default or breach continues for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
30
(4) the Company defaults under the terms of any agreement or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed, whether such indebtedness now
exists or shall hereafter be created, having an outstanding principal amount
of $15,000,000 or more in the aggregate, and such indebtedness shall be
accelerated so that the same shall be or become due and payable prior to the
date on which the same would otherwise become due and payable and such
acceleration is not rescinded or annulled within ten days after there has
been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of that series, a
written notice specifying such default and stating that such notice is a
"Notice of Default" hereunder (it being understood however, that, subject to
the provisions of Section 6.1, the Trustee shall not be deemed to have
knowledge of such default under such agreement or instrument unless a
Responsible Officer of the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such agreement or instrument);
provided, however, that if such default under such agreement or instrument
is remedied or cured by the Company or waived by the holders of such
indebtedness, then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived without
further action upon the part of either the Trustee or any of the Holders of
the Securities of that series; or
(5) the Company pursuant to or within the meaning of any Bankruptcy Law
(A) commences a voluntary case, (B) consents to the entry of an order for
relief against it in an involuntary case, (c) consents to the appointment of
a Custodian of it or for all or substantially all of its property, or (D)
makes a general assignment for the benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (A) is for relief against the Company in an
involuntary case, (B) appoints a Custodian of the Company or for all or
substantially all of its property, or (C) orders the liquidation of the
Company; and the order or decree remains unstayed and in effect for 90 days;
or
(7) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of that series.
The term "Bankruptcy Law" means title 11, U.S. Code, or any similar federal
or state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 5.2 Acceleration; Rescission and Annulment.
If an Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing (other than an Event of Default
specified in clause (5) or (6) of Section 5.1), the Trustee or the Holders of at
least 25% in aggregate principal amount of all of the Outstanding Securities of
that series, by written notice to the Company (and, if given by the
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Holders, to the Trustee), 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 that series to be due and payable and upon any such
declaration such principal amount (or, in the case of Original Issue Discount
Securities, such specified amount) shall be immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Trustee, may
rescind and annul such declaration and its consequences if all existing Defaults
and Events of Default with respect to Securities of that series, other than the
non-payment of the principal amount (or, in the case of Original Discount
Securities, such specified amount) of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.7. No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
If an Event of Default specified in clause (5) or (6) of Section 5.1 occurs
and is continuing, the principal amount of all the Securities of any series (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)
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal, premium, if any, and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium, if any, and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, and collect the money adjudged or decreed to be payable in
the manner provided by law out of the property of the Company wherever situated.
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If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
The Trustee may 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 the
Holders of Securities allowed in any judicial proceedings relating to the
Company, its creditors or its property.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto.
Section 5.6 Delay or Omission not Waiver.
No delay or omission by the Trustee or any Holder of any Securities to
exercise any right or remedy accruing upon an Event of Default shall impair any
such right or remedy or constitute a waiver of or an acquiescence in any such
Event of Default.
Section 5.7 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of Outstanding
Securities of any series by notice to the Trustee may waive on behalf of the
Holders of all Securities of such series a past Default or Event of Default with
respect to that series and its consequences except (i) a Default or Event of
Default in the payment of the principal of, premium, if any, or interest on any
Security of such series or (ii) in respect of a covenant or provision hereof
which pursuant to Section 8.2 cannot be amended or modified without the consent
of the Holder of each Outstanding Security of such series adversely affected.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture.
Section 5.8 Control by Majority.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series shall have the right to direct in writing the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it with respect to
Securities of that series; provided, however, that (a) the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, (b) subject to
the provisions of Article 6, the Trustee may refuse to follow any direction that
is unduly prejudicial to the rights of the Holders of Securities of such series
not joining in such direction or that would in the good faith judgment of the
Trustee have a substantial likelihood of involving the Trustee in personal
33
liability and (c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.9 Limitation on Suits by Holders.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) the Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series shall have made a written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense to be, or
which may be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee for 60 days after its receipt of such notice, request
and the offer of indemnity has failed to institute any such proceedings; and
(5) during such 60-day period, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of that series has not given
to the Trustee a direction inconsistent with such written request.
No one or more Holders of the Securities of any series 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 of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.10 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal of, premium, if any, and,
subject to Sections 3.5 and 3.7, interest on such Security, on or after the
respective due dates expressed in such Security (or, in case of redemption, on
the Redemption Date), or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 5.11 Application of Money Collected.
If the Trustee collects any money pursuant to this Article, it shall pay out
the money in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, premiums, if
any, or interest, upon presentation of the
34
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
First: to the Trustee for amounts due under Section 6.9;
Second: to Holders of Securities of a series in respect of which or for
the benefit of which such money has been collected for amounts due and
unpaid on such Securities for principal of, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any,
and interest, respectively; and
Third: to the Company.
Section 5.12 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 5.13 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
3.6, no right or remedy herein conferred upon or reserved to the Trustee or the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.14 Waiver of Usury, Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so) it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
35
Section 5.15 Undertaking for 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 or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 5.15 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, with respect to any
Security on or after the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on or after the Redemption Date, and, in the
case of repayment, on or after the date for repayment) or for the enforcement of
the right, if any, to convert or exchange any Security into or other securities
in accordance with its terms.
ARTICLE 6.
The Trustee
Section 6.1 Certain Duties and Responsibilities.
(a) With respect to Securities of any series, except during the continuance
of an Event of Default with respect to the Securities of such series,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(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 provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing with respect
to the Securities of any series, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture with respect to the Securities of such
series, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
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(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; and
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it with respect to the Securities of any series in
good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of such series relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(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 6.2 Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) The Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
(b) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (other than
delivery of any Security to the Trustee for authentication and delivery pursuant
to Section 3.3, which shall be sufficiently evidenced as provided therein) and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
(c) Whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate.
37
(d) The Trustee may consult with counsel of its selection and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(e) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(f) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, 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 Company's expense.
(g) the Trustee may act through agents, attorneys, custodians or nominees
and shall not be responsible for the misconduct or negligence of any agent,
attorney, custodian or nominee appointed with due care by it hereunder.
(h) The Trustee shall not be charged with knowledge of any Default or Event
of Default with respect to the Securities of any series for which it is acting
as Trustee unless either (i) a Responsible Officer of the Trustee shall have
actual knowledge of the Default or Event of Default, or (ii) written notice of
such Default or Event of Default shall have been given to the Trustee by the
Company or by any Holder of Securities of that series or any other series, or,
in the event of a default pursuant to Section 5.1(4), by the holder of any other
indebtedness of the Company or by the trustee of any other agreement or
instrument to which the Company is a party.
(i) The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or powers
conferred on it by this Indenture.
(j) The Trustee shall not be required 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 its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(k) In the event that the Trustee is also acting as Paying Agent or
Registrar hereunder, the rights and protections afforded to the Trustee pursuant
to this Article 6 shall also be afforded to such Paying Agent or Registrar.
Section 6.3 Trustee May Hold Securities.
The Trustee, any Paying Agent, any Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to
38
Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the
Company, an Affiliate or Subsidiary with the same rights it would have if it
were not Trustee, Paying Agent, Registrar or such other agent.
Section 6.4 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 6.5 Trustee's Disclaimer.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representation as to the validity or adequacy of this Indenture or the
Securities, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of
Eligibility on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. The Trustee shall not be accountable
for the Company's use of the proceeds from the Securities or for monies paid
over to the Company pursuant to the Indenture.
Section 6.6 Notice of Defaults.
If a Default occurs and is continuing with respect to the Securities of any
series and if it is known to the Trustee, as contemplated by Section 6.2(h), the
Trustee shall, within 90 days after it occurs, transmit, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, notice of all
uncured or unwaived Defaults known to it; provided, however, that, except in the
case of a Default in payment on the Securities of any series, the Trustee may
withhold the notice if and so long as the board of directors, the executive
committee or a trust committee of its directors and/or its Responsible Officers
in good faith determine that withholding such notice is in the interests of
Holders of Securities of that series; provided further, however, that, in the
case of any default or breach of the character specified in Section 5.1(3) with
respect to the Securities of such series, no such notice to Holders shall be
given until at least 60 days after the occurrence thereof.
Section 6.7 Reports by Trustee to Holders.
Within 60 days after each January 31 of each year commencing with the first
January 31 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit by mail to all Holders of Securities as provided in
Section 313(c) of the Trust Indenture Act a brief report dated as of such
January 31, if required by Section 313(a) of the Trust Indenture Act. The
Trustee also shall comply with Sections 313(b) and 313(d) of the Trust Indenture
Act. A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with the Company. The Company will notify the
Trustee in writing when any series of Securities are listed on any stock
exchange.
39
Section 6.8 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of Holders of
Securities of each series. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee semiannually on or before the last day of June and
December in each year, and at such other times as the Trustee may request in
writing, a list, in such form and as of such date as the Trustee may reasonably
require, containing all the information in the possession of the Registrar, the
Company or any of its Paying Agents other than the Trustee as to the names and
addresses of Holders of Securities of each series.
Section 6.9 Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time such compensation
as shall be agreed between the Company and the Trustee for all services rendered
by it hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it in
connection with the performance of its duties under this Indenture, except any
such expense as may be attributable to its negligence or bad faith. Such
expenses shall include the reasonable compensation and expenses of the Trustee's
agents and counsel.
(b) The Company shall indemnify the Trustee for and hold it harmless
against, any loss or liability incurred by it without negligence or bad faith on
its part arising out of or in connection with its acceptance or administration
of the trust or trusts hereunder. The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld or delayed.
(c) The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee through negligence or bad faith.
(d) To secure the payment obligations of the Company pursuant to this
Section, the Trustee shall have a lien prior to the Securities of any series on
all money or property held or collected by the Trustee, except that held in
trust to pay principal, premium, if any, and interest on particular Securities.
(e) To the extent permitted by law, when the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section
5.1(5) or Section 5.1(6), 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.
(f) "Trustee" for purposes of this Section 6.9 shall include any predecessor
Trustee, but the negligence or bad faith of any Trustee shall not affect the
rights of any other Trustee under this Section 6.9.
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(g) The provisions of this Section shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
Section 6.10 Replacement of Trustee.
(a) The resignation or removal of the Trustee and the appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in Section 6.11.
(b) Subject to Section 6.10(a) above, the Trustee may resign at any time
with respect to the Securities of any series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may remove the Trustee with respect to that
series by so notifying the Trustee and the Company in writing and may appoint a
successor Trustee for such series with the Company's consent.
(d) If at any time:
(1) the Trustee fails to comply with Section 310(b) of the Trust
Indenture Act with respect to the Securities of a series after written
request therefor by the Company or by any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series for at
least six months, or
(2) the Trustee with respect to the Securities of any series shall
cease to be eligible under Section 310(a) of the Trust Indenture Act and
shall fail to resign after written request therefor by the Company or by any
Holder of a Security of such series who has been a bona fide Holder of a
Security of such series for at least six months; or
(3) the Trustee with respect to the Securities of any series becomes
incapable of acting, is adjudged a bankrupt or an insolvent or a receiver or
public officer takes charge of the Trustee or its property or affairs for
the purpose of rehabilitation, conservation or liquidation, then, in any
such case, (i) the Company by or pursuant to a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act, 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 removal of the Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee resigns, is removed or becomes incapable of acting or if
a vacancy exists in the office of Trustee for any reason, with respect to
Securities of one or more series, the Company, by or pursuant to Board
Resolution, shall promptly appoint a successor Trustee with respect to the
Securities of that or those series (it being understood that any such successor
41
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of 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) In no event shall any retiring Trustee be liable for the acts or
omissions of any successor Trustee hereunder.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee, without further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver an indenture
supplemental hereto wherein such successor Trustee shall accept such appointment
and which (i) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
as co-trustees of the same trust and that each such Trustee shall be trustee of
a trust or trusts hereunder separate and apart
42
from any trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under the
Trust Indenture Act and this Article.
(e) 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 in the manner
provided for notices to the Holders of Securities in Section 1.6. 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 6.12 Eligibility; Disqualification; Conflicting Interest.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, which shall be eligible to act as
Trustee under Section 310(a) of the Trust Indenture Act, has a combined capital
and surplus of at least $50,000,000 and is subject to supervision or examination
by Federal or state authority. If a corporation publishes reports of condition
at least annually, pursuant to law or the requirements of Federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of Section 310(a)(2) of the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect specified in this Article. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.
Section 6.13 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the
43
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original
issue, exchange, registration of transfer or partial redemption thereof, 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. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. 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, except as may otherwise be provided pursuant to
Section 3.1, 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 or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or 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 all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Company. The Trustee for any series of Securities 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
44
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 for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve in the manner set
forth in Section 1.6. 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 as may be agreed to in writing with the Company,
including reimbursement of its reasonable expenses for its services under this
Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of a series issued under the within-mentioned
Indenture.
Dated: THE CHASE MANHATTAN
BANK, as Trustee
By
------------------------------
as Authenticating Agent
By
------------------------------
Authorized Signatory
Section 6.15 Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than 15 Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
45
Section 6.16 Preservation of Information; Communications to Holders.
(a) The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
(b) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee 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 312 of the
Trust Indenture Act, 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 312(b) of the Trust
Indenture Act.
ARTICLE 7.
Consolidation, Merger or Sale by the Company
Section 7.1 Consolidation, Merger or Sale of Assets Permitted.
The Company may merge or consolidate with or into any other corporation or
sell, convey, transfer or otherwise dispose of all or substantially all of its
assets to any Person, if (i) (A) in the case of a merger or consolidation, the
Company is the surviving corporation or (B) in the case of a merger or
consolidation where the Company is not the surviving corporation and in the case
of any such sale, conveyance, transfer or other disposition, the successor or
acquiring corporation is a corporation organized and existing under the laws of
the United States, any state thereof or the District of Columbia and such
corporation expressly assumes by supplemental indenture all the obligations of
the Company under the Securities and under this Indenture, (ii) immediately
thereafter, giving effect to such merger or consolidation, or such sale,
conveyance, transfer or other disposition, no Default or Event of Default shall
have occurred and be continuing, and (iii) the Company or the successor
corporation has delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such merger or consolidation, or such sale,
conveyance, transfer or other disposition, and the supplemental indenture in
respect thereof, if any, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with. In the event of the assumption by a successor corporation of the
obligations of the Company as provided in clause (i)(B) of the immediately
preceding sentence, such successor corporation shall succeed to and be
substituted for the Company hereunder and under the Securities and all such
obligations of the Company shall terminate.
ARTICLE 8.
Supplemental Indentures
Section 8.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
indentures
46
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to facilitate the issuance of Securities in
global form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture; provided, however, that any such addition, change or elimination
shall become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11;
(9) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other provisions
with respect to matters or questions arising under this Indenture, provided,
however, such action shall not adversely affect the interests of the Holders
of Securities of any series in any material respect; or to cure any
ambiguity or correct any mistake; or
(10) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act or under any similar Federal statute
subsequently enacted, and to add to this Indenture such other provisions as
may be expressly required under the Trust Indenture Act.
47
Section 8.2 With Consent of Holders.
With the written consent of the Holders of a majority of the aggregate
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto to add any provisions to or to
change or eliminate any provisions of this Indenture or of any other indenture
supplemental hereto or to modify the rights of the Holders of Securities of each
such series; provided, however, that without the consent of the Holder of each
Outstanding Security of such series adversely affected thereby, an amendment
under this Section may not:
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon (or change the manner of calculation
of the rate of interest thereon) or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 5.2, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in aggregate principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture;
(3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 9.2; or
(4) make any change in Section 5.7 or this Section 8.2 except to
increase any percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holders of
each Outstanding Security of such series adversely affected thereby.
A supplemental indenture that 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 that modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It is not necessary under this Section 8.2 for the Holders to consent to the
particular form of any proposed supplemental indenture, but it is sufficient if
they consent to the substance thereof.
Section 8.3 Compliance with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall comply
with the requirements of the Trust Indenture Act as then in effect.
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Section 8.4 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 315 of the Trust Indenture Act) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and an
Officers' Certificate stating that all conditions precedent to the execution of
such supplemental indenture have been fulfilled. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 8.5 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 8.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 8.7 Notice to Holders.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture under Section 8.2 with respect to the Securities of any
series, the Company shall transmit to all Holders of such Securities a notice,
in accordance with Section 1.6, setting forth in general terms the substance of
such supplemental indenture.
ARTICLE 9.
Covenants
Section 9.1 Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of,
premium, if any, and interest on the Securities of that series in accordance
with the terms of the Securities of such series and this Indenture. An
installment of principal or interest shall be considered paid on the date it is
due
49
if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.
Section 9.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location and any change in the location of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Unless otherwise specified as contemplated by Section 3.1, the Company
hereby initially designates as the Place of Payment for each series of Debt
Securities, the City and State of New York.
Unless otherwise specified as contemplated by Section 3.1, the Trustee shall
initially serve as Paying Agent.
Section 9.3 Money for Securities to Be Held in Trust; Unclaimed Money.
If the Company shall at any time act as its own Paying Agent with respect to
any series of Securities, it will, on or before each due date of the principal
of, premium, if any, or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal, 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 in writing of its action
or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect to
any series of Securities, it will, prior to or on each due date of the
principal, and premium, if any, or interest on any Securities of such series,
deposit with a Paying Agent a sum sufficient to pay the principal, and premium,
if any, or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company promptly will notify the
Trustee in writing of its action or failure so to act.
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The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any Default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal, premium, if any, or interest on the Securities; 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 a 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 any principal, premium or interest on
any Security of any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on a 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 City of New
York, or cause to be mailed to such Holder, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 9.4 Corporate Existence.
Subject to Article 7, the Company will at all times do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and its rights and franchises; provided, however, that nothing in this
Section 9.4 shall prevent the abandonment or termination of any right or
franchise of the Company if, in the determination of the Company, such
abandonment or termination is in the best interests of the Company and does not
materially
51
adversely affect the ability of the Company to operate its business or to
fulfill its obligations hereunder.
Section 9.5 Insurance.
The Company covenants and agrees that it will maintain, and cause each of
its Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations or through a program of self-insurance in such amounts
and covering such risks as, in the determination of the Company, are consistent
with sound business practice for corporations engaged in the same or a similar
business similarly situated.
Section 9.6 Reports by the Company.
The Company covenants:
(a) to file with the Trustee, within 30 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (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,
as amended (the "Exchange Act"); or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then to
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 Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants provided for in this Indenture, as may
be required from time to time by such rules and regulations; and
(c) to transmit to all Holders of Securities, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section 9.6, as may be required by rules and
regulations prescribed from time to time by the Commission.
Section 9.7 Annual Review Certificate; Notice of Default.
The Company covenants and agrees to deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a brief certificate from the
principal executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture. For purposes of this Section 9.7,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture. The Company shall file with
the Trustee
52
written notice of the occurrence of any Event of Default within 45 Business Days
of its becoming aware of any such Event of Default.
Section 9.8 Provision of Financial Statements.
If the Company is not required to file with the Commission periodic reports
and other information pursuant to Section 13(a), 13(c) or 15(d) of the Exchange
Act, the Company shall furnish without cost to each Holder and file with the
Trustee (i) within 135 days after the end of each fiscal year, annual reports
containing the information required to be contained in Items 1, 2, 3, 6, 7, 8
and 9 of Form 10-K promulgated under the Exchange Act, or substantially the same
information required to be contained in comparable items of any successor form,
(ii) within 60 days after the end of each of the first three fiscal quarters of
each fiscal year, quarterly reports containing the information required to be
contained in Form 10-Q promulgated under the Exchange Act, or substantially the
same information required to be contained in any successor form, and (iii)
promptly from the time after the occurrence of an event required to be therein
reported, such other reports containing information required to be contained in
Form 8-K promulgated under the Exchange Act, or substantially the same
information required to be contained in any successor form.
Section 9.9 Limitation on Liens.
(a) The Company will not issue, assume or guarantee any indebtedness for
borrowed money (referred to in this Section 9.9 as "indebtedness", which term
shall not include any guarantee, cash deposit or other recourse obligation in
connection with the sale, securitization or discount by the Company of finance
or accounts receivable, trade acceptances or other paper arising in the ordinary
course of its business) secured by a mortgage, security interest, pledge or lien
(referred to in this Section 9.9 as a "mortgage" or "mortgages") of or upon any
property of the Company whether such property is owned at the date of this
Indenture or thereafter acquired, without making effective provision whereby the
Securities (together with, if the Company shall so determine, any other
indebtedness issued, assumed or guaranteed by the Company and then existing or
thereafter created) shall be secured by such mortgage equally and ratably with
(or, at the option of the Company, prior to) such indebtedness, so long as such
indebtedness shall be so secured; provided, however, that the foregoing shall
not apply to any of the following:
(1) mortgages of or upon any property (including, without limitation,
inventory) acquired, constructed or improved by, or of or upon any shares of
capital stock or indebtedness acquired by, the Company after the date of
this Indenture (A) to secure the payment of all or any part of the purchase
price of such property, shares of capital stock or indebtedness upon the
acquisition thereof by the Company or (B) to secure any indebtedness issued,
assumed or guaranteed by the Company prior to, at the time of, or within 360
days after (i) in the case of property, the latest of the acquisition,
completion of construction (including any improvements on existing property)
and commencement of commercial operation of such property, or (ii) in the
case of shares of capital stock or indebtedness, the acquisition of such
shares of capital stock or indebtedness, which indebtedness is issued,
assumed or guaranteed for the purpose of financing or refinancing all or any
part of the purchase price of such property, shares of capital stock or
indebtedness and, in the case of property, the cost of construction thereof
or
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improvements thereon, provided, however, that, in the case of any such
acquisition, construction or improvement of property, the mortgage shall not
apply to any property, shares of capital stock or indebtedness theretofore
owned by the Company other than (x) any real property on which the property
so acquired or constructed or the improvement is located or (y) any real
property to which the property so acquired or constructed or the improvement
attaches or is affixed;
(2) mortgages of or upon any property, shares of capital stock or
indebtedness, which mortgages exist at the time of acquisition of such
property, shares or indebtedness by the Company;
(3) mortgages of or upon any property of a corporation, which mortgages
exist at the time such corporation is merged with or into or consolidated
with the Company or which mortgages exist at the time of a sale or transfer
of the properties of a corporation as an entirety or substantially as an
entirety to the Company;
(4) mortgages to secure indebtedness of the Company to any Subsidiary,
provided, however, that the money borrowed by the Company from such
Subsidiary that constitutes such indebtedness arose from the internal
operations of such Subsidiary;
(5) mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country or political subdivision to secure partial,
progress, advance or other payments pursuant to any contract or statute or
to secure any indebtedness incurred, assumed or guaranteed for the purpose
of financing or refinancing all or any part of the purchase price of the
property, shares of capital stock or indebtedness subject to such mortgages,
or the cost of constructing or improving the property subject to such
mortgages (including, without limitation, mortgages incurred in connection
with pollution control, industrial revenue or similar financings);
(6) mortgages on properties financed through tax-exempt municipal
obligations, provided that such mortgages are limited to the property so
financed;
(7) mortgages existing on the date of execution of this Indenture;
(8) mortgages of or upon any grain inventory to secure any indebtedness
incurred, assumed or guaranteed by the Company;
(9) mortgages of or upon any equity or other interest in the Trinidad
Venture to facilitate the availability of political risk insurance and/or to
secure any indebtedness in connection with or relating to the Trinidad
Venture; and
(10) any extension, renewal, substitution, refinancing, refunding or
replacement (or successive extensions, renewals, substitutions,
refinancings, refundings or replacements) (each a "refinancing") in whole or
in part of any mortgage existing at the date of the Indenture or any
mortgage referred to in the foregoing clauses (1) through (9), inclusive,
provided, however, that the principal amount of indebtedness secured thereby
shall not exceed the principal amount of indebtedness so secured at the time
of
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the refinancing plus the aggregate amount of premiums, other payments,
costs and expenses required to be paid or incurred in connection with the
refinancing, and that the refinancing shall be limited to all or a part of
the property (plus improvements and construction on such property), shares
of capital stock or indebtedness which was subject to the mortgage so
extended, renewed, substituted, refinanced, refunded or replaced.
(b) Notwithstanding the provisions of subsection (a) of this Section, the
Company may, without equally and ratably securing the Securities, issue, assume
or guarantee indebtedness secured by a mortgage not excepted by clauses (1)
through (10), inclusive, of such subsection (a), if the aggregate amount of such
indebtedness, together with all other indebtedness of, or indebtedness
guaranteed by, the Company existing at such time and secured by mortgages not so
excepted, does not at the time exceed 10% of the Company's Consolidated Net
Worth. "Consolidated Net Worth" shall be the difference between the Company's
consolidated total assets and consolidated total liabilities as shown on the
Company's most recent audited consolidated financial statements prepared in
accordance with generally accepted accounting principles.
Section 9.10 Ownership of Material Subsidiary Stock.
The Company covenants that it will not take any action which would result in
a decrease in the percentage of the outstanding shares of stock of any Material
Subsidiary directly or indirectly owned by the Company, except as the result of
(1) the issuance of directors' qualifying shares, (2) the declaration and
payment of patronage refunds, (3) the issuance of capital stock to members, (4)
the purchase or retirement of shares with the proceeds of newly issued shares,
(5) the sale or disposition of capital stock at a price determined by the
Company (which determination may be evidenced by a resolution of the Company's
Board of Directors) to be the fair value thereof, or (6) the merger or
consolidation of a Material Subsidiary with or into the Company or with or into
a wholly owned subsidiary of the Company without a determination of the fair
value thereof.
Section 9.11 Waiver of Certain Covenants.
The Company may fail or omit in any particular instance to comply with the
covenants set forth in this Article IX (other than Sections 9.1, 9.2 and 9.4)
with respect to any series of Securities if the Company shall have obtained and
filed with the Trustee prior to the time for such compliance the consent in
writing of the Holders of at least a majority in aggregate principal amount of
all of the Securities of such series at the time Outstanding either waiving such
compliance in such instance or generally waiving compliance with such covenant
or covenants, but no such waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon.
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ARTICLE 10.
Redemption
Section 10.1 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.1 for Securities of any series) in
accordance with this Article.
Section 10.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution or an Officers' Certificate. In the case of
any redemption at the election of the Company of less than all the Securities of
any series, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities (a) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities, or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms at such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 10.3 Selection of Securities to Be Redeemed.
Unless otherwise specified as contemplated by Section 3.1, if less than all
the Securities of a series with the same original issue date, interest rate and
Stated Maturity are to be redeemed, the Trustee, not more than 45 days prior to
the Redemption Date, shall select the Securities of the series to be redeemed in
such manner as the Trustee shall deem fair and appropriate. The Trustee shall
make the selection from the Securities of the series that are Outstanding and
that have not previously been called for redemption and may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Registrar in writing
of the Securities selected by the Trustee for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
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Section 10.4 Notice of Redemption.
Unless otherwise specified as contemplated by Section 3.1, notice of
redemption shall be given in the manner provided in Section 1.6 not less than 30
days nor more than 60 days prior to the Redemption Date to the Holders of the
Securities of any series to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of a series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without a
charge, a new Security or Securities of such series of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) the Place or Places of Payment where such Securities maturing after
the Redemption Date are to be surrendered for payment for the Redemption
Price;
(6) that Securities of the series called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(7) that, on the Redemption Date, the Redemption Price will become due
and payable upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date;
(8) that the redemption is for a sinking fund, if such is the case; and
(9) if applicable, the CUSIP number for the Securities of the series
called for redemption.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
Section 10.5 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 9.3) an amount of
money sufficient to pay on the Redemption Date the Redemption Price of, and
(unless the Redemption Date shall be an Interest Payment Date) interest accrued
to the Redemption Date on, all Securities or portions thereof which are to be
redeemed on that date.
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Section 10.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 10.7 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part at any Place of
Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of that Security, without service charge,
a new Security or Securities of the same series, the same form and the same
Maturity in any authorized denomination equal in aggregate principal amount to
the unredeemed portion of the principal of the Security surrendered.
ARTICLE 11.
Sinking Funds
Section 11.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". Except as otherwise specified by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 11.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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Section 11.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities of a series (other than
any such Securities previously called for redemption), and (b) may apply as a
credit Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 11.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities (unless a shorter period shall be satisfactory to the Trustee),
the Company shall deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 11.2 and
shall also deliver to the Trustee any Securities to be so credited and not
theretofore delivered to the Trustee. Not less than 45 days before each such
sinking fund payment date (unless a shorter period shall be satisfactory to the
Trustee), the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 10.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 10.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 10.5, 10.6 and 10.7.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
FARMLAND INDUSTRIES, INC.
By:
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Name:
Title:
THE CHASE MANHATTAN BANK, as Trustee
By:
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Name:
Title:
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