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▇▇▇▇ ATLANTIC-PENNSYLVANIA, INC.
and
THE CHASE MANHATTAN BANK,
Trustee
---------------
Indenture
Dated as of September 1, 1998
---------------
Providing for Issuance of
Securities in Series
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Reconciliation and tie between Indenture dated as of September 1, 1998 and the
Trust Indenture Act of 1939, as amended. This reconciliation section does not
constitute part of the Indenture.
Trust Indenture Act Indenture
of 1939, as amended, Section Section
310(a)(1) ..................... 7.10
(a)(2) ...................... 7.10
(a)(3) ...................... Inapplicable
(a)(4) ...................... Inapplicable
(a)(5) ...................... 7.10
(b) ......................... 7.08;7.10
(c) ......................... Inapplicable
311(a) ........................ 7.11
(b) ......................... 7.11
(c) ......................... Inapplicable
312(a) ........................ 2.07
(b) ......................... 10.03
(c) ......................... 10.03
313(a) ........................ 7.06
(b)(1) ...................... Inapplicable
(b)(2) ...................... 7.06
(c) ......................... 7.06; 10.02
(d) ......................... 7.06
314(a) ........................ 4.03; 10.02
(b) ......................... Inapplicable
(c)(1) ...................... 10.04
(c)(2) ...................... 10.04
(c)(3) ...................... Inapplicable
(d) ......................... Inapplicable
(e) ......................... 10.05
(f) ......................... Inapplicable
315(a) ........................ 7.01(b)
(b) ......................... 7.05; 10.02
(c) ......................... 7.01(a)
(d) ......................... 7.01(c)
(e) ......................... 6.11
316(a)(last sentence) ......... 2.11
(a)(1)(A) ................... 6.05
(a)(1)(B) ................... 6.04
(a)(2) ...................... Inapplicable
(b) ......................... 6.07
317(a)(1) ..................... 6.08
(a)(2) ...................... 6.09
(b) ......................... 2.06
318(a) ........................ 10.01
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE ............................ 1
1.01 Definitions ...................................................... 1
1.02 Other Definitions ................................................ 2
1.03 Incorporation by Reference of Trust Indenture Act ................ 2
1.04 Rules of Construction ............................................ 3
ARTICLE 2 THE SECURITIES ........................................................ 3
2.01 Issuable in Series ............................................... 3
2.02 Establishment of Terms and Form of Series of Securities .......... 3
2.03 Execution, Authentication and Delivery ........................... 4
2.04 Registrar and Paying Agent ....................................... 5
2.05 Payment on Securities ............................................ 6
2.06 Paying Agent to Hold Money in Trust .............................. 6
2.07 Securityholder Lists; Ownership of Securities .................... 6
2.08 Transfer and Exchange ............................................ 7
2.09 Replacement Securities ........................................... 7
2.10 Outstanding Securities ........................................... 8
2.11 Treasury Securities .............................................. 8
2.12 Temporary Securities ............................................. 8
2.13 Cancellation ..................................................... 9
2.14 Defaulted Interest ............................................... 9
ARTICLE 3 REDEMPTION ............................................................ 9
3.01 Notice to Trustee ................................................ 9
3.02 Selection of Securities to be Redeemed ........................... 9
3.03 Notice of Redemption ............................................. 10
3.04 Effect of Notice of Redemption; Payment upon Surrender ........... 10
3.05 Deposit of Redemption Price ...................................... 10
3.06 Securities Redeemed in Part ...................................... 10
3.07 Redemption at the Option of Holders .............................. 10
ARTICLE 4 COVENANTS ............................................................. 11
4.01 Payment of Securities ............................................ 11
4.02 Lien on Assets ................................................... 11
4.03 Reports by the Company ........................................... 11
ARTICLE 5 SUCCESSOR CORPORATION ................................................. 12
5.01 When Company May Merge, etc. ..................................... 12
ARTICLE 6 DEFAULTS AND REMEDIES ................................................. 12
6.01 Events of Default ................................................ 12
6.02 Acceleration ..................................................... 13
6.03 Other Remedies Available to Trustee .............................. 13
6.04 Waiver of Existing Defaults ...................................... 13
6.05 Control by Majority .............................................. 13
6.06 Limitation on Suits by Securityholders ........................... 13
6.07 Rights of Holders to Receive Payment ............................. 14
6.08 Collection Suits by Trustee ...................................... 14
6.09 Trustee May File Proofs of Claim ................................. 14
6.10 Priorities ....................................................... 14
6.11 Undertaking for Costs ............................................ 14
ARTICLE 7 TRUSTEE ............................................................... 15
7.01 Duties of Trustee ................................................ 15
7.02 Rights of Trustee ................................................ 15
7.03 Individual Rights of Trustee ..................................... 15
7.04 Trustee's Disclaimer ............................................. 16
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7.05 Notice of Defaults ................................................ 16
7.06 Reports by Trustee to Holders ..................................... 16
7.07 Compensation and Indemnity ........................................ 16
7.08 Replacement of Trustee ............................................ 16
7.09 Successor Trustee, Agents by Merger, etc. ......................... 17
7.10 Eligibility; Disqualification ..................................... 17
7.11 Preferential Collection of Claims Against Company ................. 18
ARTICLE 8 DISCHARGE OF INDENTURE ................................................. 18
8.01 Termination of Company's Obligations .............................. 18
8.02 Application of Trust Money ........................................ 18
8.03 Excess or Unclaimed Money ......................................... 18
8.04 Indemnity for Government Obligations .............................. 19
ARTICLE 9 AMENDMENTS AND WAIVERS ................................................. 19
9.01 Without Consent of Holders ........................................ 19
9.02 With Consent of Holders ........................................... 19
9.03 Compliance with Trust Indenture Act ............................... 20
9.04 Revocation and Effect of Consents ................................. 20
9.05 Notation on or Exchange of Securities ............................. 20
9.06 Trustee Protected ................................................. 20
9.07 Execution of Supplemental Indentures .............................. 20
ARTICLE 10 MISCELLANEOUS .......................................................... 20
10.01 Trust Indenture Act Controls ..................................... 20
10.02 Notices .......................................................... 20
10.03 Communication by Holders with Other Holders ...................... 21
10.04 Certificate and Opinion as to Conditions Precedent ............... 21
10.05 Statements Required in Certificate or Opinion .................... 21
10.06 Rules by Trustee and Agents ...................................... 22
10.07 Legal Holidays ................................................... 22
10.08 Governing Law .................................................... 22
10.09 No Adverse Interpretation of Other Agreements .................... 22
10.10 No Recourse Against Others ....................................... 22
10.11 Execution in Counterparts ........................................ 23
SIGNATURES .......................................................................... 23
ii
INDENTURE, dated as of September 1, 1998, between ▇▇▇▇ ATLANTIC-
PENNSYLVANIA, INC., a Pennsylvania corporation ("Company"), and THE CHASE
MANHATTAN BANK, a corporation duly organized and existing under the laws of the
State of New York ("Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness ("Securities") as herein provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, and intending to be legally bound hereby, it
is mutually covenanted and agreed as follows for the equal and ratable benefit
of the Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"Agent" means any Paying Agent or Registrar.
"Authorized Newspaper" means a newspaper of general circulation, in the
official language of the country of publication or in the English language,
customarily published on each business day. Whenever successive weekly
publications in an Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on the same or different days of
the week and in the same or different Authorized Newspapers.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution of the Board of Directors,
certified by the Secretary or an Assistant Secretary of the Company to have
been adopted by the Board of Directors and to be in full force and effect on
the date of the certificate, and delivered to the Trustee.
"Company" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor.
"Company Order" means an order signed by two Officers or by any Officer
and an Assistant Treasurer or an Assistant Secretary of the Company.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Holder" or "Securityholder" means a bearer of an Unregistered Security or
of a coupon appertaining thereto or a person in whose name a Registered
Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the forms and terms of particular Series of Securities
established as contemplated hereunder.
"Officer" means the President, any Vice-President, the Treasurer, the
Secretary or the Controller of the Company and the Chairman or a Vice-Chairman
of the Board of Directors, if any.
"Officers' Certificate" means a certificate signed by two Officers or by
any Officer and an Assistant Treasurer or an Assistant Secretary of the
Company.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Company and the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
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"Original Issue Discount Security" means any Security which provides for
an amount less than the stated principal amount thereof to be due and payable
upon declaration of acceleration of the maturity thereof pursuant to Section
6.02.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on the Security.
"Registered Security" means any Security issued hereunder and registered
as to principal and interest by the Registrar.
"Responsible Officer", when used with respect to the Trustee, shall mean
the chairman or any vice-chairman of the board of directors or trustees, the
chairman or any vice-chairman of the executive committee of the board of
directors or trustees, the president, any vice-president, the treasurer, the
secretary, any trust officer, any second or assistant vicepresident or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Series" or "Series of Securities" means a series of Securities.
"Securities" means the debentures, notes or other obligations of the
Company issued, authenticated and delivered under this Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended from time to time
(15 U.S.C. [sec][sec] 77aaa-77bbbb) and references to Sections of the TIA
herein shall include successor Sections, if applicable.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and thereafter means the successor 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 that Series.
"U.S. person" means a citizen, national or resident of the United States,
a corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in
gross income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"Unregistered Security" means any Security issued hereunder which is not a
Registered Security.
"Yield to Maturity" means the yield to maturity, calculated by the Company
at the time of issuance of a Series of Securities or, if applicable, at the
most recent determination of interest on such Series in accordance with
accepted financial practice.
SECTION 1.02. Other Definitions.
Term Section
---- -------
"Bankruptcy Law" ...................... 6.01
"Custodian" ........................... 6.01
"Event of Default" .................... 6.01
"Legal Holiday" ....................... 0.07
"Paying Agent" ........................ 2.04
"Registrar" ........................... 2.04
"U.S. Government Obligations" ......... 8.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a Securityholder.
2
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more Series.
There may be Registered Securities and Unregistered Securities within a
Series and the Unregistered Securities may be subject to such restrictions, and
contain such legends, as may be required by United States laws and regulations.
All Securities within a Series shall be substantially identical except as may
otherwise be provided in or pursuant to a Board Resolution or indenture
supplemental hereto. Subject to the immediately preceding sentence, Securities
may differ in any respect; provided that all Securities shall be equally and
ratably entitled to the benefits of this Indenture.
SECTION 2.02. Establishment of Terms and Form of Series of Securities.
(a) At or prior to the issuance of any Series of Securities, the following
shall be established either by or pursuant to a Board Resolution or by an
indenture supplemental hereto:
(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from the Securities of any other
Series and from any other securities issued by the Company);
(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 Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the Series pursuant to Sections 2.08, 2.09, 2.12, 3.06 or
9.05);
(3) the date or dates on which the principal of the Securities of the
Series is payable;
(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, the
dates on which such interest shall be payable and, with respect to
Registered Securities, the record date for the interest payable on any
interest payment date;
(5) the place or places where the principal of and interest on
Registered and Unregistered, if any, Securities of the Series shall be
payable;
(6) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
3
(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 period or periods within which, the price or prices
at which, and the terms and conditions upon which, Securities of the Series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(8) if in other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.02;
(10) whether Securities of the Series shall be issuable as Registered
Securities or Unregistered Securities (with or without interest coupons),
or both, and any restrictions applicable to the offering, sale or delivery
of Unregistered Securities and whether, and the terms upon which,
Unregistered Securities of a Series may be exchanged for Registered
Securities of the same Series and vice versa;
(11) whether and under what circumstances the Company will pay
additional amounts on the Securities of that Series held by a person who is
not a U.S. person in respect of taxes or similar charges withheld or
deducted and, if so, whether the Company will have the option to redeem
such Securities rather than pay such additional amounts;
(12) the currency or currencies, which may be a composite currency
such as the European Currency Unit, of payment of principal of and premium,
if any, and interest on the Debt Securities, if other than U.S. dollars;
(13) any other terms of the Series (which terms shall not be
inconsistent with the provisions of this Indenture) including 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
that Series;
(14) the form of the Securities (or forms thereof if Unregistered and
Registered Securities shall be issuable in such Series, including such
legends as may be required by United States laws or regulations, the form
of any coupons or temporary global Security which may be issued and the
forms of any certificates which may be required hereunder or under United
States laws or regulations in connection with the offering, sale, delivery
or exchange of Unregistered Securities); and
(15) the extent to which any Securities will be issuable in temporary
or permanent global form, and the manner in which any payments on a
temporary or permanent global Security will be made.
(b) If the terms and form or forms of any Series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee at or prior to the issuance of
such Series with (1) the form or forms of Security which have been approved
attached thereto, or (2) if such Board Resolution authorizes a specific Officer
or Officers to approve the terms and form or forms of the Securities, a
certificate of such Officer or Officers approving the terms and form or forms
of Security with such form or forms of Securities attached thereto.
SECTION 2.03. Execution, Authentication and Delivery.
(a) Securities shall be executed on behalf of the Company by its Chairman
of the Board of Directors or a Vice-Chairman of the Board of Directors, if any,
or the President or a Vice-President, and by its Treasurer or an Assistant
Treasurer or its Secretary or an Assistant Secretary. Signatures shall be
manual or facsimile. The Company's seal shall be reproduced on the Securities
and may, but need not, be attested. The coupons of Unregistered Securities
shall bear the facsimile signature of the Treasurer or an Assistant Treasurer
of the Company.
(b) If an Officer, an Assistant Treasurer or an Assistant Secretary whose
signature is on a Security or coupon no longer holds that office at the time
the Security is authenticated, the Security or coupon shall be valid
nevertheless.
(c) A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent and no coupon shall be
valid until the Security to which it appertains has been so authenticated. Such
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. Each Unregistered Security shall be dated the date of its
original issuance and each Registered Security shall be dated the date of its
authentication.
4
(d) The Trustee shall at any time, and from time to time, authenticate and
deliver Securities of any Series executed and delivered by the Company for
original issue upon receipt by the Trustee of (i) a Company Order for the
authentication and delivery of such Securities, (ii) if the terms and form or
forms of the Securities of such Series have been established by or pursuant to
a Board Resolution as permitted by Section 2.02, a copy of such Board
Resolution and any certificate that may be required pursuant to Section 2.02(b)
and (iii) an Opinion of Counsel stating:
(1) if the form of such Securities has been established by or pursuant
to a Board Resolution as permitted by Section 2.02, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 2.02, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If the terms and form or forms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 2.02, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will materially and adversely affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the foregoing, (i) delivery of Unregistered Securities
will be made only outside the United States and its possessions and (ii)
Unregistered Securities will be released in definitive form to the person
entitled to physical delivery thereof only upon presentation of a certificate
in the form prescribed by the Company, until such time as the Company has
notified the Trustee and the Registrar that upon delivery of Unregistered
Securities under any other circumstances, the Company would not suffer adverse
consequences under the provisions of United States law or regulations in effect
at the time of the delivery of Unregistered Securities.
(e) The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution (or certificate of an Officer or
Officers) or supplemental indenture pursuant to Section 2.02.
(f) The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
SECTION 2.04. Registrar and Paying Agent.
The Company shall maintain in the United States an office or agency where
Registered Securities may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where (subject to Sections 2.05
and 2.08) Securities may be presented for payment or, in the case of
Unregistered Securities, for exchange ("Paying Agent"). With respect to any
Series of Securities issued in whole or in part as Unregistered Securities, the
Company shall maintain one or more Paying Agents located outside the United
States and its possessions and shall maintain such Paying Agents for a period
of two years after the principal of such Unregistered Securities has become due
and payable. During any period thereafter for which it is necessary in order to
conform to United States tax law or regulations, the Company will maintain a
Paying Agent outside the United States and its possessions to which the
Unregistered Securities or coupons appertaining thereto may be presented for
payment and will provide the necessary funds therefor to such Paying Agent upon
reasonable notice. The Registrar shall keep a register with respect to each
Series of Securities issued in whole or in part as Registered Securities and
with respect to their transfer and exchange. The Company may appoint one or
more co-Registrars and one or more additional Paying Agents for each Series of
Securities and the Company may terminate the appointment of any co-Registrar or
Paying Agent at any time upon written notice. The term "Registrar" includes any
co-Registrar. The term "Paying Agent" includes any additional Paying Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company fails to maintain a Registrar or Paying
Agent, the Trustee shall act as such.
The Company initially appoints First Union National Bank as Registrar and
Paying Agent.
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SECTION 2.05. Payment on Securities.
(a) Subject to the following provisions, the Company will pay to the
Trustee the amounts, in such coin or currency as is at the time legal tender
for the payment of public or private debt, at the times and for the purposes
set forth herein and in the text of the Securities for each Series, and the
Company hereby authorizes and directs the Trustee from funds so paid to it to
make or cause to be made payment of the principal of and interest, if any, on
the Securities and coupons of each Series as set forth herein and in the text
of such Securities and coupons. The Trustee will arrange directly with any
Paying Agents for the payment, or the Trustee will make payment, from funds
furnished by the Company, of the principal of and interest, if any, on the
Securities and coupons of each Series by check.
(b) Interest, if any, on Registered Securities of a Series shall be paid
on each interest payment date for such Series to the Holder thereof at the
close of business on the relevant record dates specified in the Securities of
such Series. Interest may be payable by check mailed to such Holder's address
as it appears on the register for Securities of such Series. Principal of
Registered Securities shall be payable only against presentation and surrender
thereof at the office of the Paying Agent, unless the Company shall have
otherwise instructed the Trustee by Company Order.
(c) To the extent provided in the Securities of a Series, (i) interest, if
any, on Unregistered Securities shall be paid only against presentation and
surrender of the coupons for such interest installments as are evidenced
thereby as they mature and (ii) original issue discount (as defined in Section
1273 of the Internal Revenue Code of 1986, as amended), if any, on Unregistered
Securities shall be paid only against presentation and surrender of such
Securities; in either case at the office of a Paying Agent located outside of
the United States and its possessions, unless the Company shall have otherwise
instructed the Trustee by Company Order. Principal of Unregistered Securities
shall be paid only against presentation and surrender thereof as provided in
the Securities of a Series. If at the time a payment of principal of or
interest, if any, or original issue discount, if any, on an Unregistered
Security or coupon shall become due, the payment of the full amount so payable
at the office or offices of all the Paying Agents outside the United States and
its possessions is illegal or effectively precluded because of the imposition
of exchange controls or other similar restrictions on the payment of such
amount in United States currency, then the Company may instruct the Trustee to
make such payments at the office of a Paying Agent located in the United
States, provided that provision for such payment in the United States would not
cause such Unregistered Security to be treated as a "registration-required
obligation" under United States law and regulations.
SECTION 2.06. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust, for the benefit of
Securityholders of any Series of Securities, or the Trustee, all money held by
the Paying Agent for the payment of principal or interest on such Series of
Securities, and that the Paying Agent will notify the Trustee of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
If the Company or a subsidiary acts as Paying Agent, it shall segregate the
money held by it for the payment of principal or interest on any Series of
Securities and hold such money as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon so doing the Paying Agent shall have no further liability for the money so
paid.
SECTION 2.07. Securityholder Lists; Ownership of Securities.
(a) 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 each Series of Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee as of (and not later than ten days after)
the record date for payment of interest on each Series of Securities (but in
any event not less than semiannually), 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 or
control of the Registrar, the Company or any of its Paying Agents other than
the Trustee as to the names and addresses of Holders of each such Series of
Securities. If there are Unregistered Securities of any Series outstanding,
even if the Trustee is the Registrar, the Company shall furnish to the Trustee
such a list containing such information with respect to Holders of such
Unregistered Securities only.
(b) Ownership of Registered Securities of a Series shall be proved by the
register for such Series kept by the Registrar. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or
by a certificate or affidavit executed by the person holding such Unregistered
Securities or by a depository with
6
whom such Unregistered Securities were deposited, if the certificate or
affidavit is satisfactory to the Company. The Company, the Trustee and any
agent of the Company may treat the bearer of any Unregistered Security or
coupon and the person in whose name a Registered Security is registered as the
absolute owner thereof for all purposes.
SECTION 2.08. Transfer and Exchange.
(a) Where Registered Securities of a Series are presented to the Registrar
with a request to register their transfer or to exchange them for an equal
principal amount of Registered Securities of the same Series and date of
maturity of other authorized denominations, the Registrar shall register the
transfer or make the exchange if its requirements for such transactions are
met. The registration of transfer or exchange shall be effective only by the
surrender of the Registered Securities and the issuance by the Company and
authentication by the Trustee of replacement Registered Securities.
(b) If both Registered and Unregistered Securities are authorized for a
Series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same Series and date of maturity in any
authorized denominations upon delivery to the Registrar (or a Paying Agent, if
the exchange is for Unregistered Securities) of the Unregistered Security with
all unmatured coupons and all matured coupons in default appertaining thereto
and if all other requirements of the Registrar (or such Paying Agent) and such
Securities for such exchange are met, and (ii) Registered Securities may be
exchanged for an equal principal amount of Unregistered Securities of the same
Series and date of maturity in any authorized denominations (except that any
coupons appertaining to such Unregistered Securities which have matured and
have been paid shall be detached) upon delivery to the Registrar of the
Registered Securities and if all other requirements of the Registrar (or the
Paying Agent to which the Registrar forwards such Unregistered Securities) and
such Securities for such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities for
Registered Securities or Registered Securities for Unregistered Securities will
be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the
Company has notified the Trustee and the Registrar that, as a result of such
exchange, the Company would not suffer adverse consequences under such law or
regulations.
(c) To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities upon surrender of Securities for registration of
transfer or for exchange as provided in this Section. The Company will not make
any charge for any registration of transfer or exchange but may require the
payment by the party requesting such registration of transfer or exchange of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
(d) Neither the Company nor the Registrar shall be required (i) to issue,
register the transfer of or exchange Securities of any Series for the period of
15 days immediately preceding the selection of any such Securities to be
redeemed, (ii) to register the transfer of or exchange Securities of any Series
selected, called or being called for redemption as a whole or the portion being
redeemed of any such Securities selected, called or being called for redemption
in part, or (iii) to register the transfer of or exchange Securities of any
Series as to which the Holder has exercised an option to require redemption of
such Security prior to the stated maturity date thereof.
(e) Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery.
SECTION 2.09. Replacement Securities.
(a) If a mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall issue and
the Trustee shall authenticate a replacement Registered Security, if such
surrendered security was a Registered Security, or a replacement Unregistered
Security with coupons corresponding to the coupons appertaining to the
surrendered Security, if such surrendered Security was an Unregistered
Security, of the same Series and date of maturity, if the Trustee's
requirements are met.
(b) If the Holder of a Security claims that the Security or any coupon
appertaining thereto has been lost, destroyed or wrongfully taken, the Company
shall execute and the Trustee shall authenticate a replacement Registered
Security, if such Holder's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the lost, destroyed or wrongfully taken Unregistered Security
or the Unregistered Security to which such lost, destroyed or wrongfully taken
coupon appertains, if such Holder's claim
7
pertains to an Unregistered Security, of the same Series and date of maturity,
if the Trustee's requirements are met; provided, however, that the Trustee or
the Company may require any such Holder to provide to the Trustee or the
Company security or indemnity sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss which any of them may suffer if a Security is replaced. The
Company may charge the party requesting a replacement Security for its
expenses, and any associated taxes, in replacing a Security.
(c) Every replacement Security is an additional obligation of the Company.
(d) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 2.10. Outstanding Securities.
(a) Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding.
(b) If a Security is replaced pursuant to Section 2.09, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
(c) If the Paying Agent holds on a redemption date or maturity date money
sufficient to pay all amounts due on that date on Securities of any Series,
then on and after that date all Securities of such Series that mature or that
are to be redeemed on such date cease to be outstanding and interest on them
ceases to accrue.
(d) A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
(e) In determining whether the Holders of the requisite principal amount
of outstanding Securities of any Series 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, the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
SECTION 2.11. Treasury Securities.
In determining whether the Holders of the requisite principal amount of
Securities of any Series have concurred in any direction, waiver or consent,
Securities of such Series owned by the Company or an Affiliate shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series which the Trustee knows are so owned shall be so
disregarded. Securities of such Series owned by the Company which have been
pledged in good faith may be considered by the Trustee if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right to so act
with respect to such Securities and that the pledgee is not the Company or an
Affiliate.
SECTION 2.12. Temporary Securities.
(a) Until definitive Registered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Registered Securities of such Series. Temporary
Registered Securities of any Series shall be substantially in the form of
definitive Registered Securities of such Series but may have variations that
the Company considers appropriate for temporary Securities. Every temporary
Registered Security shall be executed by the Company and authenticated by the
Trustee, and registered by the Registrar, upon the same conditions, and with
like effect, as a definitive Registered Security. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Registered Securities of the same Series and date of maturity in exchange for
temporary Registered Securities.
(b) Until definitive Unregistered Securities of any Series are ready for
delivery, the Company may prepare and execute and the Trustee shall
authenticate one or more temporary Unregistered Securities, which may have
coupons attached or which may be in the form of a single temporary global
Unregistered Security of that Series. The temporary Unregistered Security or
Securities of any Series shall be substantially in the form approved by or
pursuant to a Board Resolution and shall be delivered to one of the Paying
Agents located outside the United States and its possessions or to such other
person or persons as the Company shall direct against such certification as the
Company may from
8
time to time prescribe by or pursuant to a Board Resolution. The temporary
Unregistered Security or Securities of a Series shall be executed by the
Company and authenticated by the Trustee upon the same conditions, and with
like effect, as a definitive Unregistered Security of such Series, except as
provided herein or therein. A temporary Unregistered Security or Securities
shall be exchangeable for definitive Unregistered Securities at the time and on
the conditions, if any, specified in the temporary Security.
Upon any exchange of a part of a temporary Unregistered Security of a
Series for definitive Unregistered Securities of such Series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of definitive Unregistered Securities of such Series
so exchanged and endorsed.
SECTION 2.13. Cancellation.
The Company at any time may deliver Securities and coupons to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities and coupons surrendered to them for registration of
transfer or for exchange or payment. The Trustee shall cancel all Securities
and coupons surrendered for registration of transfer, or for exchange, payment
or cancellation and may dispose of cancelled Securities and coupons as the
Company directs; provided, however, that any Unregistered Securities of a
Series delivered to the Trustee for exchange prior to maturity shall be
retained by the Trustee for reissue as provided herein or in the Securities of
such Series. The Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation.
SECTION 2.14. Defaulted Interest.
If the Company defaults on a payment of interest on a Series of
Securities, it shall pay the defaulted interest as provided in such Securities
or in any lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed and acceptable to
the Trustee. With respect to Registered Securities, the Trustee may pay the
defaulted interest, plus any interest payable on the defaulted interest, to the
Holders of such Registered Securities on a subsequent special record date. The
Company shall fix such special record date and the payment date. At least 15
days before such special record date, the Company shall mail to such Holders a
notice that states the record date, the payment date and the amount of interest
to be paid, and on or before the payment date the Company shall deposit such
amount with the Trustee.
ARTICLE 3
REDEMPTION
SECTION 3.01. Notice to Trustee.
The Company may, with respect to any Series of Securities, reserve the
right to redeem and pay the Series of Securities or any part thereof, or may
covenant to redeem and pay the Series of Securities or any part thereof, before
maturity at such time and on such terms as provided for in such Securities. If
a Series of Securities is redeemable and the Company wants or is obligated to
redeem all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee of the redemption date and the
principal amount of the Series of Securities to be redeemed. The Company shall
give such notice at least 60 days before the redemption date (or such shorter
notice as may be acceptable to the Trustee).
SECTION 3.02. Selection of Securities to be Redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee, not more than 60 days prior to the redemption date, shall select the
Securities of the Series to be redeemed by a method that complies with the
requirements of any stock exchange on which the Securities of the Series are
listed and that the Trustee shall deem fair and appropriate or, if the
Securities are not listed on any stock exchange, then such Securities shall be
redeemed on a pro rata basis or by lot, as the Trustee may elect. The Trustee
shall make the selection from Securities of the Series that are outstanding and
that have not previously been called for redemption. Securities of the Series
and portions of them selected by the Trustee shall be in amounts of $1,000 or
integral multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.02(a)(8), in amounts
equal to the minimum principal denomination for each such Series and integral
multiples thereof. Provisions of this Indenture
9
that apply to Securities of a Series called for redemption also apply to
portions of Securities of that Series called for redemption. The Trustee shall
promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
SECTION 3.03. Notice of Redemption.
(a) At least 15 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each
Holder of Registered Securities that are to be redeemed.
(b) If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in each of The City of New York,
London and, if such Securities to be redeemed are listed on the Luxembourg
Stock Exchange, Luxembourg once in each of four successive calendar weeks, the
first publication to be not less than 15 nor more than 60 days before the
redemption date.
(c) All notices shall identify the Series of Securities to be redeemed and
shall state:
(1) the redemption date;
(2) the redemption price;
(3) if less 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 Securities to be redeemed;
(4) the name and address of the Paying Agent;
(5) that Securities of the Series called for redemption and all
unmatured coupons, if any, appertaining thereto must be surrendered to the
Paying Agent to collect the redemption price; and
(6) that interest on Securities of the Series called for redemption
will cease to accrue on and after the redemption date.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption; Payment upon Surrender.
Once notice of redemption is mailed or published, Securities of a Series
called for redemption become due and payable on the redemption date. Upon
surrender to the Paying Agent of Securities to be redeemed together with all
unmatured coupons, if any, appertaining thereto, such Securities shall be paid
at the redemption price plus accrued interest to the redemption date, but
installments of interest due on or prior to the redemption date will be
payable, in the case of Unregistered Securities, to the bearers of the coupons
for such interest upon surrender thereof, and, in the case of Registered
Securities, to the Holders of such Securities of record at the close of
business on the relevant record dates.
SECTION 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Trustee money sufficient to pay the redemption price of and (unless the
redemption date shall be an interest payment date) interest accrued to the
redemption date on all Securities to be redeemed on that date. Such money shall
be held in trust by the Trustee for the Holders of such Securities.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder of that Security a new
Security or Securities of the same Series, the same form and the same maturity
in authorized denominations equal in aggregate principal amount to the
unredeemed portion of the Security surrendered.
SECTION 3.07. Redemption at the Option of Holders.
Securities of any Series which are redeemable at the option of the Holders
thereof before the stated maturity date or dates of such Securities shall be
redeemed in accordance with the terms of the Series of the Securities, as set
forth in such Securities or as established by or pursuant to the Board
Resolution or supplemental indenture relating
10
to such Series. Sections 3.01 (second and third sentences), 3.02, 3.03 and 3.04
(first sentence) shall not apply to any redemption of a Security to be made at
the option of the Holder.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities on
the dates and in the manner provided herein and in the Securities. An
installment of principal or interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay the installment.
The Company shall pay interest on overdue principal of a Security of any
Series at the rate of interest (or Yield to Maturity in the case of Original
Issue Discount Securities) borne by such Security; to the extent lawful, it
shall pay interest on overdue installments of interest at the same rate.
SECTION 4.02. Lien on Assets.
If at any time the Company mortgages, pledges or otherwise subjects to any
lien the whole or any part of any property or assets now owned or hereafter
acquired by it, except as hereinafter provided in this Section 4.02, the
Company will secure the then-outstanding Securities, and any other obligations
of the Company which may then be outstanding and entitled to the benefit of a
covenant similar in effect to this covenant, equally and ratably with the
indebtedness or obligations secured by such mortgage, pledge or lien, for as
long as any such indebtedness or obligation is so secured. The foregoing
covenant does not apply to the creation, extension, renewal or refunding of
purchase-money mortgages or liens, or other liens to which any property or
asset acquired by the Company is subject as of the date of its acquisition by
the Company, or to the making of any deposit or pledge to secure public or
statutory obligations or with any governmental agency at any time required by
law in order to qualify the Company to conduct its business or any part thereof
or in order to entitle it to maintain self-insurance or to obtain the benefits
of any law relating to workmen's compensation, unemployment insurance, old age
pensions or other social security, or with any court, board, commission or
governmental agency as security incident to the proper conduct of any
proceeding before it. Nothing contained in this Indenture prevents an Affiliate
from mortgaging, pledging or subjecting to any lien any property or assets,
whether or not acquired by such Affiliate from the Company.
SECTION 4.03. Reports by the Company.
The Company covenants:
(a) to file with the Trustee, within 15 days after the Company is
required to file the same with the SEC, 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 SEC may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
SEC pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934, as amended; 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 SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, 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 SEC, in accordance with the TIA
or the rules and regulations prescribed from time to time by the SEC, such
additional information, certificates, 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 the TIA and such
rules and regulations;
(c) to transmit by mail to all Holders of Registered Securities, as
the names and addresses of such Holders appear on the register for each
Series of Securities, to such Holders of Unregistered Securities as have,
within the two years preceding such transmission, filed their names and
addresses with the Trustee for that purpose, and to each Holder whose name
is then preserved on the Trustee's list pursuant to the first sentence of
Section 2.07 (a), within 30 days after the filing thereof with the Trustee,
such summaries of any information, documents
11
and reports required to be filed by the Company pursuant to subsections (a)
and (b) of this Section 4.03 as may be required to be so transmitted by
rules and regulations prescribed from time to time by the SEC; and
(d) to deliver to the Trustee, not less often than annually, a
certificate of the principal executive officer, principal financial officer
or principal accounting officer of the Company as to such officer's
knowledge of the Company's compliance with all conditions and covenants
under this Indenture, determined without regard to any period of grace or
requirement of notice provided under this Indenture.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, etc.
The Company may consolidate with, or merge into, or be merged into, or
transfer or lease its properties and assets substantially as an entirety to,
any person provided the person is a corporation, the person assumes by
supplemental indenture all the obligations of the Company under the Securities
and any coupons appertaining thereto and under this Indenture and, after giving
effect thereto, no Default or Event of Default shall have occurred and be
continuing. The surviving, transferee or lessee corporation shall be the
successor Company, and the predecessor Company, except in the case of a lease,
shall be relieved of all obligations under this Indenture and the Securities
and any coupons appertaining thereto.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs with respect to the Securities of any Series
if:
(1) the Company defaults in the payment of interest on any Security of
that Series when the same becomes due and payable and the Default continues
for a period of 90 days;
(2) the Company defaults in the payment of the principal of any
Security of that Series when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements in
the Securities of that Series, in this Indenture or in any supplemental
indenture under which the Securities of that Series may have been issued
and the Default continues for the period and after the notice specified
below;
(4) 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
(5) 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.
12
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.
A Default under clause (3) is not an Event of Default until the Trustee or
the Holders of at least 25% in principal amount of all the outstanding
Securities of that Series notify the Company (and the Trustee in the case of
notification by such Holders) of the Default and the Company does not cure the
Default within 90 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice of
Default".
SECTION 6.02. Acceleration.
If an Event of Default occurs with respect to the Securities of any Series
and is continuing, the Trustee, by notice to the Company, or the Holders of at
least 25% in principal amount of all of the outstanding Securities of that
Series, by notice to the Company and to the Trustee, may declare the principal
(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. Upon such
declaration, such principal (or, in the case of Original Issue Discount
Securities, such specified amount) together with all interest accrued thereon
shall be due and payable immediately. The Holders of a majority in principal
amount of all of the Securities of that Series, by notice to the Trustee, may
rescind such a declaration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of the acceleration.
SECTION 6.03. Other Remedies Available to Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal or interest on
the Securities of the Series that is in default or to enforce the performance
of any provision of the Securities of that Series or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Existing Defaults.
The Holders of a majority in principal amount of any Series of Securities
by notice to the Trustee may waive an existing Default with respect to that
Series and its consequences except a Default in the payment of the principal of
or interest on any Security.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the Securities of each
Series affected (with each such Series voting as a class) may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that is unduly prejudicial to the rights of the Securityholders of all Series
so affected, or that would involve the Trustee in personal liability.
SECTION 6.06. Limitation on Suits by Securityholders.
A Securityholder may pursue a remedy with respect to this Indenture or the
Securities of any Series only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the Securities
of that Series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer 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 does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
13
(5) during such 60 day period, the Holders of a majority in principal
amount of the Securities of that Series do not give the Trustee a direction
inconsistent with the request.
A Securityholder of any Series may not use this Indenture to prejudice the
rights of another Securityholder of that Series or any other Series or to
obtain a preference or priority over another Securityholder of that Series or
any other Series.
SECTION 6.07. 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 and interest on the
Security, on or after the respective due dates expressed in the Security, and
the right of any Holder of a coupon to receive payment of interest due as
provided in such coupon, 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 6.08. Collection Suits by Trustee.
If an Event of Default specified in Section 6.01(l) or (2) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of such principal and
interest then in default.
SECTION 6.09. 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 Securityholders allowed in any judicial proceedings relating to the
Company, its creditors or its property.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities 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 and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: to the Company.
Subject to Section 2.14, the Trustee may fix a record date (with respect
to Registered Securities) and payment date for any such payment to Holders of
Securities.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the Securities of any Series.
14
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred with respect to any Security of
any Series and is continuing, the Trustee shall exercise its rights and powers
under this Indenture with respect to that Series and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect to
any Security of any Series:
(1) The Trustee need perform only those duties with respect to that
Series that are specifically set forth in the Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee.
(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. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of paragraph (b) 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 is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable to the Company for interest on any
money received by the Trustee from the Company hereunder except as the Trustee
may agree with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult with
counsel or require an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on a Board Resolution, a Company Order delivered pursuant to
Section 2.05, the written advice of counsel reasonably acceptable to the
Company and the Trustee, a certificate of an Officer or Officers delivered
pursuant to Section 2.02(b), an Officers' Certificate or an Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) 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.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
15
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities. It 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, and it shall not be responsible for any statement in
the Securities other than its certificate of authentication.
SECTION 7.05. 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, the Trustee shall mail to each
Holder of a Security of that Series entitled to receive reports pursuant to
Section 4.03(c) (and, if Unregistered Securities of that Series are
outstanding, shall cause to be published at least once in an Authorized
Newspaper in each of The City of New York, London and, if Securities of that
Series are listed on The Luxembourg Stock Exchange, Luxembourg) notice of the
Default within 90 days after it occurs. 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 its corporate trust or similar committee or a committee of its
Responsible Officers in good faith determines that withholding such notice is
in the interests of Securityholders of that Series.
SECTION 7.06. Reports by Trustee to Holders.
(a) The Trustee shall mail to each Securityholder of any Series entitled
to receive reports pursuant to Section 4.03(c) brief reports that comply with
TIA [sec] 313(a) as and when required pursuant to TIA [Sec] 313(a). The Trustee
also shall comply with TIA [Sec] 313(b).
(b) At the time that it mails such a report to Securityholders of any
Series, the Trustee shall file a copy of that report with the SEC and with each
stock exchange on which the Securities of that Series are listed. The Company
shall provide written notice to the Trustee when the Securities of any Series
are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time reasonable
compensation for its services. 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. Such expenses shall include the reasonable compensation and expenses
of the Trustee's agents and counsel.
(b) The Company shall indemnify the Trustee against any loss, liability or
expense incurred by it 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.
(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 and interest on particular Securities of a Series.
(e) If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (4) or (5) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. 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 this Section.
(b) The Trustee may resign with respect to the Securities of any Series by
so notifying the Company. The Holders of a majority in principal amount of the
Securities of any Series may remove the Trustee with respect to that Series
16
by so notifying the Trustee and the Company and may appoint a successor Trustee
for such Series with the Company's consent. The Company may remove the Trustee
with respect to Securities of any Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to Securities of any Series, the
Company shall promptly appoint a successor Trustee for such Series.
(d) If a successor Trustee with respect to the Securities of any Series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of 10% in principal
amount of the Securities of the applicable Series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee with respect to the Securities of any Series fails to
comply with Section 7.10, any Securityholder of the applicable Series may
petition any court of competent jurisdiction for the removal of such Trustee
and the appointment of a successor Trustee.
(f) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee for any Series of Securities
shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to all Series of
Securities for which the successor Trustee is to be acting as Trustee under
this Indenture. The retiring Trustee shall promptly transfer all property held
by it as Trustee with respect to such Series of Securities to the successor
Trustee subject to the lien provided for in Section 7.07. The Company shall
give notice of each appointment of a successor Trustee for any Series of
Securities (i) by mailing written notice of such event by first-class mail to
the Holders of Securities of such Series entitled to receive reports pursuant
to Section 4.03(c) and (ii) if any Securities of such Series have been issued
and are outstanding in the form of Unregistered Securities, by publishing
notice of such event once in an Authorized Newspaper in each of The City of New
York, London, and, if Securities of such Series are listed on The Luxembourg
Stock Exchange, Luxembourg.
(g) All provisions of this Section 7.08 except subparagraphs (b) (1) and
(e) and the words "subject to the lien provided for in Section 7.07" in
subparagraph (f) shall apply also to any Paying Agent located outside the U.S.
and its possessions and required by Section 2.04.
(h) 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 a
supplemental indenture wherein such successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, 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, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
Series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee.
SECTION 7.09. Successor Trustee, Agents by Merger, etc.
If the Trustee or any Agent consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business assets to,
another corporation, the successor corporation, without any further act, shall
be the successor Trustee or Agent, as the case may be.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee with respect to each Series of
Securities who satisfies the requirements of TIA [sec] 310(a)(1) and (5). The
Trustee (or any affiliate thereof which has unconditionally guaranteed the
obligations
17
of the Trustee hereunder) shall always have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual report of
condition. The Trustee is subject to TIA [sec] 310(b), except that there shall
be excluded from the operation of TIA [sec] 310(b)(1) all indentures of the
Company, and series of securities issued thereunder, now or hereafter existing
which may be excluded under the proviso of TIA [sec] 310(b)(1), and all Series
of Securities issued subsequent to the issuance of the first Series of
Securities hereunder.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA [sec] 311(a), excluding any creditor
relationship listed in TIA [sec] 311(b). A Trustee who has resigned or been
removed shall be subject to TIA [sec] 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
(a) The Company reserves the right to terminate all of its obligations
under the Securities and this Indenture with respect to the Securities of any
Series or with respect to any installment of principal of or interest on that
Series if the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations sufficient to pay, when due, principal and interest
on the Securities of that Series to maturity or redemption or such installment
of principal or interest, as the case may be, and if all other conditions set
forth in the Securities of that Series are met. The Company shall designate the
installment or installments of principal or interest to be so satisfied.
(b) However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 2.09, 4.01, 7.07, 7.08, 8.03, 8.04, 10.04 and 10.05 shall survive
until the Securities are no longer outstanding. Thereafter the Company's
obligations in Sections 7.07, 8.03 and 8.04 shall survive.
(c) Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date
in accordance with Article 3.
(d) After a deposit by the Company in accordance with this Section in
respect of the Securities of a Series, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the Series in respect of which the deposit has been made and this
Indenture with respect to the Securities of that Series except for those
surviving obligations specified above.
(e) In order to have money available on a payment date to pay principal or
interest on the Securities of any Series, the U.S. Government Obligations shall
be payable as to principal or interest on or before such payment date in such
amounts as will provide the necessary money. U.S. Government Obligations shall
not be callable at the issuer's option.
(f) "U.S. Government Obligations" means:
(i) direct obligations of the United States of America for the payment
of which the full faith and credit of the United States of America is
pledged; or
(ii) obligations of a person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the payment
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on the
Securities of each Series in respect of which the deposit shall have been made.
SECTION 8.03. Excess or Unclaimed Money.
(a) The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time.
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(b) The Trustee and the Paying Agent shall retain the money held by them
for the payment of principal or interest that remains unclaimed until such time
as the money, or any portion thereof, is paid and delivered by the Trustee to
an appropriate state authority pursuant to the applicable abandoned property
law. Thereafter, Securityholders entitled to money which has been delivered to
a state authority as abandoned property must look to such state authority for
payment.
SECTION 8.04. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee and each
Securityholder of each Series in respect of which the deposit shall have been
made against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the principal and interest received on
such obligations.
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Trustee may enter into one or more supplemental
indentures without consent of any Securityholder for any of the following
purposes:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities of any Series;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any change that does not adversely affect the rights of
any Securityholder; or
(5) to provide for the issuance of and establish the form and terms
and conditions of Securities of any Series as provided in Section 2.02, to
establish the form of any certifications required to be furnished pursuant
to the terms of this Indenture or any Series of Securities, or to add to
the rights of the Holders of any Series of Securities.
SECTION 9.02. With Consent of Holders.
(a) With the written consent of the Holders of a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (with each Series voting as a class), the Company and
the Trustee may enter into a supplemental indenture to add any provisions to or
to change or eliminate any provisions of this Indenture or of any supplemental
indenture or to modify, in each case in any manner not covered by Section 9.01,
the rights of the Securityholders of each such Series. The Holders of a
majority in principal amount of the outstanding Securities of each Series
affected by such waiver (with each Series voting as a class), by written notice
to the Trustee, may waive compliance by the Company with any provision of this
Indenture, any supplemental indenture or the Securities of any such Series
except a Default in the payment of the principal of or interest on any
Security. However, without the consent of each Securityholder affected, an
amendment or waiver may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) change the rate of or change the time for payment of interest on
any Security;
(3) change the principal of or change the fixed maturity of any
Security;
(4) waive a Default in the payment of the principal of or interest on
any Security;
(5) make any Security payable in money other than that stated in the
Security; or
(6) make any change in Section 6.04, 6.07 or 9.02(a) (third sentence).
(b) It is not necessary under this Section 9.02 for the Securityholders to
consent to the particular form of any proposed supplemental indenture, but it
is sufficient if they consent to the substance thereof.
(c) Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 9.02, the
Company shall transmit by mail a notice, setting forth in general terms the
19
substance of such supplemental indenture, to all Holders of Registered
Securities, as the names and addresses of such Holders appear on the register
for each Series of Securities, and to such Holders of Unregistered Securities
as are entitled to receive reports pursuant to Section 4.03(c). Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture that complies with the Trust
Indenture Act of 1939 as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
After an amendment or waiver becomes effective, it shall bind every
Securityholder of each Series affected by such amendment or waiver.
SECTION 9.05. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver
on any Security of any Series thereafter authenticated. The Company in exchange
for Securities of that Series may issue and the Trustee shall authenticate new
Securities of that Series that reflect the amendment or waiver.
SECTION 9.06. Trustee Protected.
The Trustee need not sign any supplemental indenture that is reasonably
likely to affect adversely its rights.
SECTION 9.07. 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 shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with a
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
SECTION 10.02. Notices.
(a) Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company to:
▇▇▇▇ Atlantic-Pennsylvania, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Controller and Chief Financial Officer
with a required copy to:
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
if to the Trustee to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
(b) The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Holders of Securities entitled to
receive reports pursuant to Section 4.03(c) shall be mailed by first-class mail
to the addresses for Holders of Registered Securities shown on the register
kept by the Registrar and to addresses filed with the Trustee or preserved on
the Trustee's list pursuant to the first sentence of Section 2.07(a) for other
Holders. Failure to so mail a notice or communication or any defect in such
notice or communication shall not affect its sufficiency with respect to other
Holders of Securities of that or any other Series entitled to receive notice.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and to each Agent at the same time.
(f) If it shall be impractical in the opinion of the Trustee or the
Company to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
SECTION 10.03. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA [Sec] 312(b)
with other Securityholders of that Series or of all Series with respect to
their rights under this Indenture or under the Securities of that Series or of
all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA [Sec] 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
21
(4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 10.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by, or a meeting of,
Securityholders of one or more Series. The Paying Agent or Registrar may make
reasonable rules and set reasonable requirements for its functions.
SECTION 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banking
institutions in the Commonwealth of Pennsylvania are not required to be open.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at such place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 10.08. Governing Law.
The laws of the Commonwealth of Pennsylvania shall govern this Indenture,
the Securities and any coupons appertaining thereto.
SECTION 10.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or an Affiliate. No such indenture, loan or debt
agreement may be used to interpret this Indenture.
SECTION 10.10. No Recourse Against Others.
No director, officer, employee, stockholder or Affiliate, as such, of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
22
SECTION 10.11. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one instrument.
▇▇▇▇ ATLANTIC-PENNSYLVANIA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Title: Controller and Chief Financial Officer
(SEAL)
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Assistant Secretary
THE CHASE MANHATTAN BANK
By: /s/ ▇.▇. ▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Officer
(SEAL)
Attest:
/s/ ▇.▇. ▇▇▇▇▇
---------------------------
Authorized Officer
23