1
EXHIBIT 4.8
================================================================================
INDENTURE
BETWEEN
FEDERAL-MOGUL CORPORATION
AS ISSUER
AND
THE BANK OF NEW YORK
AS TRUSTEE
DATED AS OF DECEMBER 1, 1997
SUBORDINATED DEBENTURES
================================================================================
2
TABLE OF CONTENTS (1)
---------------
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
PAGE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.04. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.05. Notice, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.06. Notice to Holders of Debentures; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.07. Language of Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.08. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.09. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.10. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.11. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.12. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 1.14. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 1.15. Immunity of Incorporators, Shareholders, Officers, Directors and Employees . . . . . . . . . . . . . . 17
ARTICLE 2 ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF DEBENTURES
SECTION 2.01. Designation, Terms, Amount Authentication and Delivery of Debentures . . . . . . . . . . . . . . . . . 18
SECTION 2.02. Form of Debenture and Trustee's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.03. Date and Denominations of Debentures and Provisions for Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.04. Execution of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.05. Exchange of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.06. Temporary Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2.08. Cancellation of Surrendered Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.09. Provisions of Indenture and Debentures for Sole Benefit
of Parties and Debentureholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
--------------------------
(1) Note: This table of contents shall not, for any purpose be deemed to
be part of the Indenture.
3
SECTION 2.10. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2.11. Global Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.12. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 3 SATISFACTION AND DISCHARGE
SECTION 3.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.03. Company's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.04. Discharge and Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.05. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 3.06. Conditions to Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 4 REMEDIES
SECTION 4.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.02. Acceleration of Maturity; Recission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . 40
SECTION 4.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 4.05. Trustee May Enforce Claims Without Possession of Debentures . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.06. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 4.08. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . . . . 44
SECTION 4.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.12. Control by Holders of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE 5 THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.02. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4
SECTION 5.03. Not Responsible for Recitals or Issuance of Debentures . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.04. May Hold Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.05. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.06. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.07. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 5.08. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 5.09. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.10. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.11. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.13. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 6 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.01. Preservation of Information: Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.02. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 6.03. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 7 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 7.01. Company May Consolidate, Etc. on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 7.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 7.03. Opinion of Counsel to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE 8 SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8.02. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 8.03. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.05. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.06. Reference in Debentures to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE 9 COVENANTS
SECTION 9.01. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 9.03. Money for Debentures Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5
SECTION 9.04. Limitation on Dividends; Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 9.05. Covenants as to Federal-Mogul Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 9.06. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.07. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 9.08. Financial Information; SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 10 REDEMPTION OF DEBENTURES
SECTION 10.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 10.02. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.03. Selection by Trustee of Debentures to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 10.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 10.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.06. Debentures Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 10.07. Debentures Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 11 SINKING FUNDS
SECTION 11.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.02. Satisfaction of Sinking Fund Payments with Debentures . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11.03. Redemption of Debentures for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE 12 CONVERSION OF DEBENTURES
SECTION 12.01. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 12.02. Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 12.03. No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 12.04. Adjustment of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.05. Reservation of Shares of Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.06. Payment of Certain Taxes upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.07. Nonassessability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 12.08. Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 12.09. Duties of Trustee Regarding Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 12.10. Repayment of Certain Funds Upon Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
6
ARTICLE 13 SUBORDINATION OF DEBENTURES
SECTION 13.01. Debentures Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 13.02. Payment Over of Proceeds Upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 13.03. Prior Payment to Senior Indebtedness Upon Acceleration of Debentures . . . . . . . . . . . . . . . . 78
SECTION 13.04. No Payment When Senior Indebtedness in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 13.05. Payment Permitted in Certain Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 13.06. Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 13.07. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.08. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.09. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.10. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . . . . . 83
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 13.13. Rights of Trustee as Holder of Senior Indebtedness, Preservation of Trustee's Rights . . . . . . . . 83
SECTION 13.14. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 13.15. Certain Conversions Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
7
INDENTURE, dated as of December 1, 1997, between Federal-Mogul
Corporation, a corporation duly organized and existing under the laws of the
State of Michigan (the "COMPANY"), having its principal office at ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and The Bank of New York, a
New York banking corporation having its principal corporate trust office at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West, New York, New York 10286, as Trustee (the
"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 secured or
unsecured subordinated debentures, notes or other evidences of indebtedness
(the "DEBENTURES"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Debentures or of a series thereof,
as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(d) a reference to a Section or Article is to a Section or Article
of this Indenture.
8
"ACT," when used with respect to any Holder of a Debenture, has the
meaning specified in Section 1.04.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 2.10 to act on behalf of the Trustee to authenticate
Debentures of one or more series.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place, in connection with which the term is
used, or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"BOARD OF DIRECTORS" means either the board of directors of the
Company or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Debentures,
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on
which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMMON SECURITIES" means undivided beneficial interests in the assets
of the Federal-Mogul Financing Trust that rank pari passu with Preferred
Securities issued by such Federal-Mogul Financing Trust; provided, that upon
the occurrence of an Event of Default, the rights of holders of Common
Securities to
2
9
payment in respect to distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of Preferred
Securities.
"COMMON SECURITIES GUARANTEE" means any Guarantee that the Company
enters into that operates directly or indirectly for the benefit of holders of
Common Securities of Federal-Mogul Financing Trust.
"COMMON STOCK" includes any stock of any class of the Company that has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and that is not subject to redemption by the Company. Subject to the
anti-dilution provisions of any convertible Debenture, however, shares of
Federal-Mogul Common Stock issuable on conversion of a Debenture shall include
only shares of the class designated as Common Stock of the Company at the date
of any supplemental indenture, Board Resolution or other instrument authorizing
such Debenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof that have no preference in
respect of the payment of dividends or the distribution of assets upon any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and that are not subject to redemption by the Company; provided, that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion that the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all classes resulting from all such
reclassifications.
"COMPANY" means the Person named as the "COMPANY" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"COMPANY" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by the Chairman of the Board of Directors or
the President or any Executive Vice President or any Vice President and by the
Treasurer or the Secretary or any Assistant Treasurer or any Assistant
Secretary of the Company and delivered to the Trustee.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered.
"CORPORATION" means a corporation, association, company, joint-stock
company or business trust.
3
10
"COVENANT DEFEASANCE" has the meaning specified in Section 3.05.
"DEBENTURE REGISTER" has the meaning specified in Section 2.05.
"DEBENTURE REGISTRAR" has the meaning specified in Section 2.05.
"DEBENTURES" has the meaning stated in the first recital of this
Indenture and more particularly means any Debentures authenticated and
delivered under this Indenture.
"DECLARATION," with respect to a Federal-Mogul Trust, means the
Amended and Restated Declaration of Trust of such Federal-Mogul Trust.
"DEFAULTED INTEREST" has the meaning specified in Section 2.03.
"DEFEASANCE" has the meaning specified in Section 3.04.
"DEPOSITARY" means, with respect to the Debentures of any series for
which the Company shall determine that such Debentures will be issued as a
Global Debenture, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or other
applicable statute or regulation, which, in each case, shall be designated by
the Company pursuant to either Section 2.01 or 2.11.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"EVENT OF DEFAULT" has the meaning specified in Section 4.01.
"FEDERAL-MOGUL TRUST" means Federal-Mogul Financing Trust, a Delaware
statutory business trust, or any permitted successor thereto, or any
substantially similar Delaware statutory business trust sponsored by the
Company.
"GLOBAL DEBENTURE" means, with respect to any series of Debentures, a
Debenture executed by the Company and authenticated and made available for
delivery by the Trustee to the Depositary, or pursuant to the Depositary's
instruction, all in accordance with the Indenture, which shall be registered in
the name of the Depositary or its nominee.
4
11
"GUARANTOR" means the Company in its capacity as guarantor under any
Trust Securities Guarantees.
"HOLDER", when used with respect to any Debenture, means the Person in
whose name the Debenture is registered in the Debenture Register.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of Debentures of any series established as
contemplated by Section 2.01.
"INTEREST," when used with respect to an Original Issue Discount
Debenture that by its terms bears interest only at Maturity, means interest
payable at Maturity.
"INTEREST PAYMENT DATE," when used with respect to any Debenture,
means the Stated Maturity of an installment of interest on such Debenture.
"MATURITY," when used with respect to any Debenture, means the date on
which the principal of such Debenture or an installment of such principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, notice of
option to elect repayment or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board of Directors or the President or any Executive Vice President or any
Vice President and by the Treasurer or the Secretary or any Assistant Treasurer
or any Assistant Secretary of the Company and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Company and who shall be acceptable to the
Trustee.
"ORIGINAL ISSUE DISCOUNT DEBENTURE" means any Debenture that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 4.02.
"OUTSTANDING," when used with respect to Debentures of any series,
means, as of the date of determination, all Debentures of such series
theretofore authenticated and delivered under this Indenture, except:
5
12
(i) Debentures of such series theretofore canceled by the
Trustee or any Paying Agent or delivered to the Trustee for
cancellation or that have previously been canceled;
(ii) Debentures of such series for whose payment or
redemption of which money or United States Government Obligations in
the necessary amount has been theretofore deposited in accordance with
Article 3 with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of
Debentures of such series; provided, if Debentures of such series or
portions of Debentures of such series are to be redeemed prior to the
Maturity thereof, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Debentures of such series that have been paid pursuant
to Section 2.07 or in exchange for or in lieu of which other
Debentures of such series have been authenticated and delivered
pursuant to this Indenture, other than any Debentures of such series
in respect of which there shall have been presented to the Trustee
proof satisfactory to it that Debentures of such series are held by a
bona fide purchaser in whose hands Debentures of such series are valid
obligations of the Company; and
(iv) Debentures of such series as to which Defeasance has
been effected pursuant to Section 3.04;
provided, that in determining whether the Holders of the requisite aggregate
principal amount of the Outstanding Debentures of such series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder
or whether a quorum is present at a meeting of Holders of Debentures of such
Series (A) the principal amount of an Original Issue Discount Debenture of such
series that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section
4.02, (B) the principal amount of a Debenture of such series denominated in a
foreign currency or currencies shall be the U.S. dollar equivalent, determined
on the date of original issuance of such Debenture, of the principal amount
(or, in the case of an Original Issue Discount Debenture of such series, the
U.S. dollar equivalent on the date of original issuance of such Debenture of
the amount determined as provided in (A) above) of such Debenture, and (C)
Debentures of such series owned by the Company or any other obligor upon such
Debentures, or any Affiliate of the
6
13
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, or upon any such determination as to the presence of a
quorum, only Debentures of such series that the Trustee actually knows to be so
owned shall be so disregarded. Debentures of such series so owned that have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debentures and that the pledgee is not the Company or any
other obligor upon such Debentures or any Affiliate of the Company or of such
other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of and any premium and interest on any Debentures on behalf of the
Company.
"PERSON" means a legal person, including any individual, corporation,
state, partnership, joint venture, trust, association, joint stock company,
limited liability company, unincorporated association or government or any
agency or political subdivision thereof, or any other entity of whatever
nature.
"PLACE OF PAYMENT," when used with respect to the Debentures of any
series, means the place or places where, subject to the provisions of Section
9.02, the principal of and any premium and interest on Debentures of such
series are payable as specified as contemplated by Section 2.01.
"PREDECESSOR DEBENTURE" of any Debenture of any series means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such Debenture; and, for the purposes of this definition, any
Debenture of any series authenticated and delivered under Section 2.07 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Debenture
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Debenture.
"PREFERRED SECURITIES" means undivided beneficial interests in the
assets of Federal-Mogul Trust that rank pari passu with Common Securities
issued by such Federal-Mogul Trust; provided, that upon the occurrence of an
Event of Default, the rights of holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights of holders of Preferred Securities.
"PREFERRED SECURITIES GUARANTEE" means any Guarantee that the Guarantor
may enter into with The Bank of New York or other Persons that
7
14
operates directly or indirectly for the benefit of holders of Preferred
Securities of such Federal-Mogul Trust.
"REDEMPTION DATE," when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE," when used with respect to any Debenture to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REPRESENTATIVE" means the (a) indenture trustee or other trustee, agent
or representative for any Senior Indebtedness or (b) with respect to any Senior
Indebtedness that does not have any such trustee, agent or other
representative, (i) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners
of such Senior Indebtedness, any holder or owner of such Senior Indebtedness
acting with the consent of the required persons necessary to bind such holders
or owners of such Senior Indebtedness and (ii) in the case of all other such
Senior Indebtedness, the holder or owner of such Senior Indebtedness.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
vice president, any assistant vice president, any assistant treasurer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"RULE 144(K)" means Rule 144(k) under the Securities Act or any
successor rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute.
"SENIOR INDEBTEDNESS" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed under any credit agreements, notes, guarantees or
similar documents and (B) indebtedness evidenced by securities, debentures,
bonds or other similar instruments issued by such obligor, (ii) all capital
lease obligations of such obligor, (iii) all obligations of such obligor issued
or assumed as the deferred purchase price of property, all conditional sale
obligations of such obligor and all obligations of such obligor under any title
retention agreement (but
8
15
excluding trade accounts payable arising in the ordinary course of business),
(iv) all obligations of such obligor for the reimbursement on any letter of
credit, bankers' acceptance, security purchase facility or similar credit
transaction, (v) all obligations of such obligor (contingent or otherwise) with
respect to an interest rate or other swap, cap or collar agreements, oil or
gas commodity hedge transactions or other similar instruments or agreements or
foreign currency hedge, exchange, purchase or similar instruments or
agreements, (vi) all obligations of the types referred to in clauses (i)
through (v) above of other persons for the payment of which such obligor is
responsible or liable as obligor, guarantor or otherwise and (vii) all
obligations of the types referred to in clauses (i) through (vi) above of other
persons secured by any lien on any property or asset of such obligor (whether
or not such obligation is assumed by such obligor) whether outstanding on the
date of this Indenture or thereafter created, incurred, assumed, guaranteed or
in effect guaranteed by such obligor, except for (1) any such indebtedness that
is by its terms expressly subordinated to or pari passu with the Debentures and
(2) any indebtedness between or among such obligor or its affiliates, including
all other debt securities and guarantees in respect of those debt securities,
issued to any trust, or a trustee of such trust, partnership or other entity
affiliated with the Company that is a financing vehicle of the Company (a
"FINANCING ENTITY") in connection with the issuance by such financing entity of
preferred securities or other securities that rank pari passu with, or junior
to, the Preferred Securities. Such Senior Indebtedness shall continue to be
Senior Indebtedness and be entitled to the benefits of Article 13 provisions
irrespective of any deferrals, renewals, extensions or refundings of, or
amendments, modifications, supplements or waivers of any term of such Senior
Indebtedness.
"STATED MATURITY," when used with respect to any Debenture or any
installment of principal thereof or interest thereon, means the date specified
in such Debenture as the fixed date on which the principal of such Debenture or
such installment of principal or interest is due and payable.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture, business trust or similar entity, at least a
majority of whose outstanding partnership or similar interests shall at the
time be owned by such Person or by one or more of its Subsidiaries or by such
Person and one or more of its Subsidiaries and (iii) any limited partnership of
which such Person or any of its Subsidiaries is a general partner.
9
16
"TRANSFER RESTRICTION TERMINATION DATE" means the first date on which
the Preferred Securities, the Debentures and any Common Stock issued or
issuable upon the conversion or exchange thereof (other than (i) such
securities acquired by the Company or any Affiliate thereof and (ii) Common
Stock issued upon the conversion or exchange of any such security described in
clause (i) above) may be sold pursuant to Rule 144(k).
"TRUSTEE" means the Person named as the "TRUSTEE" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "TRUSTEE" shall
mean or include each Person who is then a Trustee hereunder, and if at any time
there is more than one such Person, "TRUSTEE" as used with respect to the
Debentures of any series shall mean the Trustee with respect to Debentures of
that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, that in the
event the Trust Indenture Act of 1939 is amended after such date, "TRUST
INDENTURE ACT" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUST SECURITIES" means Common Securities and Preferred Securities of a
Federal-Mogul Trust.
"TRUST SECURITIES GUARANTEES" means the Common Securities Guarantee and
the Preferred Securities Guarantee.
"UNITED STATES" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States that, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
10
17
depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligations or the specific payment of principal of or
interest on the U.S. Government Obligations evidenced by such depository
receipt.
"VOTING STOCK," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.
"YIELD TO MATURITY" means the yield to maturity on Debentures of any
series, calculated at the time of issuance of such series, or, if applicable,
at the most recent redetermination of interest on such series, and calculated
in accordance with accepted financial practice.
SECTION 1.2. Compliance Certificates and Opinions. Except as otherwise
expressly provided by this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion by or on behalf of the Company with respect
to compliance with a condition or covenant provided for in this Indenture,
except for certificates provided for in Section 9.07, shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such
individual, the individual has made such examination or investigation
as is necessary to
11
18
enable such individual to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such
12
19
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "ACT" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent or proxy, or of the holding
by any Person of a Debenture of any series, shall be sufficient for any purpose
of this Indenture and (subject to Section 5.02) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to the execution thereof. Where such
execution is by a signer acting in a capacity other than the signer's individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of the signer's authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Debentures of any
series held by any Person, and the date of holding the same, shall be proved by
the Debenture Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debenture of any series shall bind
every future Holder of the same Debenture and the Holder of every Debenture
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Debenture.
(e) With respect to the Debentures of any series, upon receipt by the
Trustee of (i) by written notice directing the time, method or place of
conducting any proceeding or exercising any trust or power pursuant to Section
4.01 with respect to Debentures of such series or (ii) any written demand,
request or notice with respect to any matter on which the Holders of Debentures
of such series are entitled to act under this Indenture, in each case from
Holders of less than, or proxies representing less than, the requisite principal
amount of Outstanding Debentures of such series entitled to give such demand,
request or notice, the Trustee shall establish a record date for determining
Holders of Outstanding Debentures of such series entitled to join in such
demand, request or notice, which
13
20
record date shall be the close of business on the day the Trustee received such
demand, request or notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
demand, request or notice whether or not such Holders remain Holders after such
record date; provided, that unless the Holders of the requisite principal amount
of Outstanding Debentures of such series shall have joined in such demand,
request or notice prior to the day that is the ninetieth day after such record
date, such demand, request or notice shall automatically and without further
action by any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving, (i) after
the expiration of such 90-day period, a new demand, request or notice identical
to a demand, request or notice that has been canceled pursuant to the proviso to
the preceding sentence or (ii) during any such 90-day period, a new demand,
request or notice that has been canceled pursuant to the proviso to the
preceding sentence or (iii) during any such 90-day period, a new demand, request
or notice contrary to or different from such demand, request or notice, in
either of which events a new record date shall be established pursuant to the
provisions of this clause.
(f) The Company may set any day as the record date for the purpose of
determining the Holders of Outstanding Debentures of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders of Debentures of such series. With regard to any record date set
pursuant to this paragraph, the Holders of Outstanding Debentures of such series
on such record date (or their duly appointed agents), and only such Persons,
shall be entitled to give or take the relevant action, whether or not such
Holders remain Holders after such record date. With regard to any action that
may be given or taken hereunder only by Holders of a requisite principal amount
of Outstanding Debentures of any series (or their duly appointed agents) and for
which a record date is set pursuant to this paragraph, the Company may, at its
option, set an expiration date after which no such action purported to be given
or taken by any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of
Outstanding Debentures of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph shall prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any expiration
date, any action identical to, or, at any time, contrary to or different from,
any action given or taken, or purported to have been given or taken, hereunder
by a Holder on or prior to such date, in which event the Company may set a
record date in respect thereof pursuant to this clause. Notwithstanding the
foregoing or the Trust Indenture Act,
14
21
the Company shall not set a record date for, and the provisions of this clause
shall not apply with respect to, any action to be given or taken by Holders
pursuant to Section 4.01, 4.02 or 4.12.
SECTION 1.5. Notice, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Trustee Administration, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture, to the attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders of Debentures; Waiver. Except as
otherwise expressly provided herein, where this Indenture provides for notice to
Holders of Debentures of any event, such notice shall be sufficiently given to
Holders of any series if in writing and mailed, first-class postage prepaid, to
each Holder of a Debenture affected by such event, at the address of such Holder
as registered in the books of the Company, not earlier than the earliest date,
and not later than the latest date, prescribed for the giving of such notice;
provided, that any notice of redemption of Debentures required to be given to
all Holders shall also be given by release made by the Company to Reuters
Economic Services and Bloomberg Business News not earlier than the earliest
date, and not later than the latest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Debentures by mail, then such notification as shall be made with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. In any case where notice to Holders of Debentures is
given by mail, neither the failure to mail such notice, nor any defect in any
notice mailed to any particular Holder of a Debenture shall affect the
sufficiency of such notice with respect to other Holders of Debentures.
15
22
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Debentures shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.7. Language of Notices, Etc. Any request, demand,
authorization, direction, notice, consent or waiver required or permitted under
this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
SECTION 1.8. Conflict with Trust Indenture Act. If and to the extent
that any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture that is required to be included in this
Indenture by any of SECTIONs 310 to 318, inclusive, of the Trust Indenture Act,
such required provision shall control.
SECTION 1.9. Effect of Headings and Table of Contents. The Article and
SECTION headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.10. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.11. Separability Clause. In case any provision in this
Indenture or the Debentures shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.12. Benefits of Indenture. Nothing in this Indenture or the
Debentures, express or implied, shall give to any Person, other than the parties
hereto, any Authenticating Agent, any Paying Agent, any Debentures Registrar and
their successors hereunder, the holders of Trust Securities, and the Holders of
Debentures, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.13. Governing Law. This Indenture and the Debentures shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to conflict of laws principles thereof.
16
23
SECTION 1.14. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, sinking fund payment date, Maturity or Stated Maturity of
any Debenture of any series shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Debentures
other than a provision in the Debentures of any series that specifically states
that such provision shall apply in lieu of this Section) payment of interest or
principal (and premium, if any) will be made on the next succeeding Business Day
at such Place of Payment; provided, that no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case may be, to such succeeding Business Day and
except that, if such Business Day is in the next succeeding calendar year, then
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date.
SECTION 1.15. Immunity of Incorporators, Shareholders, Officers,
Directors and Employees. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of a Debenture of any series, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer, director or employee, as such, past, present
or future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued hereunder
are solely corporate obligations of the Company, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, shareholders, officers, directors or employees, as such, of the
Company or of any successor corporation, or any of them, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations
or agreements contained in this Indenture or in any of the Debentures or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, shareholder, officer, director or
employee, as such, because of the creation of the indebtedness hereby
authorized, or under of by reason of the obligations or agreements contained in
this Indenture or in any of the Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Debentures.
All payments of interest and other amounts, if any, to be made by the
Trustee hereunder shall be made only from the money deposited with the Trustee
and only to the extent that the Trustee shall have sufficient income or proceeds
to
17
24
make such payments in accordance with the terms of this Indenture, and each
Holder thereof, by its acceptance of a Debenture, agrees that it will look
solely to the income and proceeds deposited with the Trustee to the extent
available for distribution to such Holder as provided and that the Trustee is
not personally liable in any manner to such Holder for any amounts payable or
any liability under this Indenture or any Debenture.
ARTICLE 2
ISSUE, DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND
EXCHANGE OF DEBENTURES
SECTION 2.1. Designation, Terms, Amount Authentication and Delivery of
Debentures. The aggregate principal amount of Debentures that may be
authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the aggregate
principal amount of Debentures of that series from time to time authorized by or
pursuant to a Board Resolution or pursuant to one or more indentures
supplemental hereto, prior to the initial issuance of Debentures of a particular
series. Prior to the initial issuance of Debentures of any series, there shall
be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto:
(a) the title of the Debentures of the series (which shall
distinguish the Debentures of the series from all other Debentures);
(b) any limit upon the aggregate principal amount of the
Debentures of that series that may be authenticated and delivered under
this Indenture (except for Debentures authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Debentures of that series);
(c) the date or dates on which the principal of the Debentures
of the series is payable;
(d) the rate or rates at which the Debentures of the series
shall bear interest or the manner of calculation of such rate or rates,
if any;
18
25
(e) the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest will be payable or
the manner of determination of such Interest Payment Dates and the
record date for the determination of Holders to whom interest is
payable on any such Interest Payment Dates;
(f) the right, if any, to extend or defer the interest payment
periods and the duration of such extension;
(g) the period or periods within which, the price or prices at
which, and the terms and conditions upon which, Debentures of the
series may be redeemed, in whole or in part, at the option of the
Company;
(h) the obligation, if any, of the Company to redeem or
purchase Debentures of the series pursuant to any sinking fund or
analogous provisions (including payments made in cash in anticipation
of future sinking fund obligations) 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, Debentures of the
series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(i) any exchangeability, conversion or prepayment
provisions of the Debentures;
(j) the form of the Debentures of the series including the
form of the certificate of authentication for such series;
(k) if other than denominations of $50 or any integral
multiple thereof, the denominations in which the Debentures of the
series shall be issuable;
(l) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture); and
(m) whether the Debentures are issuable as a Global Debenture
and, in such case, the identity of the Depositary for such series.
(n) If the Debentures of such series are to be deposited as
trust assets in a Federal-Mogul Trust the name of the applicable
Federal-Mogul (which shall distinguish such Federal-Mogul Trust from
all other Federal-
19
26
Mogul Trusts) into which the Debentures of such series are to
be deposited as trust assets and the date of its Declaration of Trust.
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any such Board Resolution or in any indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.2. Form of Debenture and Trustee's Certificate. The
Debentures of any series and the Trustee's certificate of authentication to be
borne by such Debentures shall be substantially of the tenor and purport as set
forth in one or more indentures supplemental hereto or as provided in a Board
Resolution and as set forth in an Officers' Certificate, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Debentures of that series may be listed, or to conform to
usage.
SECTION 2.3. Date and Denominations of Debentures and Provisions for
Payment of Principal, Premium and Interest. The Debentures shall be issuable as
registered Debentures and in the denominations of $50 or any integral multiple
thereof, subject to Section 2.01(k). The Debentures of a particular series shall
bear interest payable on the dates and at the rate specified with respect to
that series. The principal of and the interest on the Debentures of any series,
as well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in the coin or currency of the United States of America that at
the time is legal tender for public and private debt, at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, The City
and State of New York. Each Debenture shall be dated the date of its
authentication. Interest on the Debentures shall be computed on the basis of a
360-day year composed of twelve 30-day months.
The interest installment on any Debenture that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name said
20
27
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the regular record date for such interest installment. In the case
of any Debenture that is converted into Common Stock of the Company on or after
any regular record date and prior to the next succeeding Interest Payment Date
(other than a Debenture whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Debenture (or one or more Predecessor Debentures) is
registered at the close of business on such regular record date. In the event
that any Debenture of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date and prior to such Interest Payment Date,
the amount of such payment shall include accumulated and unpaid interest accrued
to, but excluding, such redemption date. Except as expressly provided, in the
case of any Debenture that is converted, interest whose Stated Maturity is after
the date of conversion of such Debenture shall not be payable.
Any interest on any Debenture that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Debentures of the
same series (herein called "DEFAULTED INTEREST") shall forthwith cease to be
payable to the registered Holder on the relevant regular record date by virtue
of having been such Holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: the Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Debenture and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest, which shall not be more
than 15 nor less than 10 days prior to the date of the proposed payment
and not less than 10 days after
21
28
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first class postage prepaid, to each
Debentureholder at his or her address as it appears in the Debenture
Register (as hereinafter defined), not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the persons in
whose names such Debentures (or their Predecessor Debentures) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest on
any Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise set forth in a Board Resolution or one or more
indentures supplemental hereto establishing the terms of any series of
Debentures pursuant to Section 2.01 hereof, the term "regular record date" as
used in this Section with respect to a series of Debentures with respect to any
Interest Payment Date for such series shall mean either the fifteenth day of the
month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.
Subject to the foregoing provisions of this Section, each Debenture of
a series delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debenture of such series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debenture.
SECTION 2.4. Execution of Debentures. The Debentures shall be
signed on behalf of the Company by the Chairman or Vice Chairman of its Board
of
22
29
Directors or its President or one of its Vice Presidents, under its corporate
seal attested by its Secretary or one of its Assistant Secretaries. The
signature of the Chairman, Vice Chairman, President or a Vice President and/or
the signature of the Secretary or an Assistant Secretary in attestation of the
corporate seal, upon the Debentures, may be in the form of a manual or facsimile
signature of a present or any future Chairman, Vice Chairman, President or Vice
President and of a present or any future Secretary or Assistant Secretary and
may be imprinted or otherwise reproduced on the Debentures and for that purpose
the Company may use the manual or facsimile signature of any person who shall
have been a Chairman, Vice Chairman, President or Vice President, or of any
person who shall have been a Secretary or Assistant Secretary, notwithstanding
the fact that at the time the Debentures shall be authenticated and delivered or
disposed of such person shall have ceased to be the Chairman, Vice Chairman,
President or a Vice President, or the Secretary or an Assistant Secretary, of
the Company, as the case may be. The seal of the Company may be in the form of a
facsimile of the seal of the Company and may be impressed, affixed, imprinted or
otherwise reproduced on the Debentures.
Only such Debentures as shall bear thereon a certificate of
authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate executed by the Trustee, or by any Authenticating Agent appointed by
the Trustee with respect to such Debentures, upon any Debenture executed by the
Company shall be conclusive evidence that the Debenture so authenticated has
been duly authenticated and made available for delivery hereunder and that the
Holder is entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures of any series executed by the
Company to the Trustee for authentication, together with a written order of the
Company for the authentication and delivery of such Debentures, signed by its
President or any Vice President and its Treasurer or any Assistant Treasurer,
and the Trustee in accordance with such written order shall authenticate and
make available for delivery such Debentures.
In authenticating such Debentures and accepting the additional
responsibilities under this Indenture in relation to such Debentures, the
Trustee shall be entitled to receive, and (subject to Section 5.01) shall be
fully protected in
23
30
relying upon, an Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debentures and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
SECTION 2.5. Exchange of Debentures. (a) Debentures of any series may
be exchanged upon presentation thereof at the office or agency of the Company
designated for such purpose in the Borough of Manhattan, The City and State of
New York, for other Debentures of such series of authorized denominations, and
for a like aggregate principal amount, upon payment of a sum sufficient to cover
any tax or other governmental charge in relation thereto, all as provided in
this Section 2.05. In respect of any Debentures so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or agency
shall make available for delivery in exchange therefor the Debenture or
Debentures of the same series that the Debentureholder making the exchange shall
be entitled to receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, The City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the "DEBENTURE REGISTER") in which, subject
to such reasonable regulations as it may prescribe, the Company shall register
the Debentures and the transfers of Debentures as in this Article provided and
that at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfer of Debentures
as herein provided shall be appointed as authorized by Board Resolution (the
"DEBENTURE REGISTRAR").
Upon surrender for transfer of any Debenture at the office or agency of
the Company designated for such purpose in the Borough of Manhattan, The City
and State of New York, the Company shall execute, the Trustee shall authenticate
and such office or agency shall make available for delivery in the name of the
transferee or transferees a new Debenture or Debentures of the same series as
the Debenture presented for a like aggregate principal amount.
All Debentures presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Company or
the Debenture
24
31
Registrar, duly executed by the registered Holder or by his duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Debentures, or issue of new Debentures in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, Section 8.06 and Section 10.07
not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Debentures during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
less than all the outstanding Debentures of the same series and ending at the
close of business on the day of such mailing, nor (ii) to register the transfer
of or exchange any Debentures of any series or portions thereof called for
redemption. The provisions of this Section 2.05 are, with respect to any Global
Debenture, subject to Section 2.11 hereof.
SECTION 2.6. Temporary Debentures. Pending the preparation of
definitive Debentures of any series, the Company may execute, and the Trustee
shall authenticate and make available for delivery, temporary Debentures of any
authorized denomination, and substantially in the form of the definitive
Debentures in lieu of which they are issued, but with such omissions, insertions
and variations as may be appropriate for temporary Debentures, all as may be
determined by the Company. Every temporary Debenture of any series shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Debentures of such series. Without unnecessary delay the Company will
execute and will furnish definitive Debentures of such series and thereupon any
or all temporary Debentures of such series may be surrendered in exchange
therefor (without charge to the Holders), at the office or agency of the Company
designated for the purpose in the Borough of Manhattan, The City and State of
New York, and the Trustee shall authenticate and such office or agency shall
make available for delivery in exchange for such temporary Debentures an equal
aggregate principal amount of definitive Debentures of such series, unless the
Company advises the Trustee to the effect that definitive Debentures need not be
executed and furnished until further notice from the Company. Until so
exchanged, the temporary Debentures of such series shall be entitled to the same
benefits under this Indenture as definitive Debentures of such series
authenticated and delivered hereunder.
25
32
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Debentures. In case
any temporary or definitive Debenture shall become mutilated or be destroyed,
lost or stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon its request the Trustee (subject as aforesaid) shall
authenticate and make available for delivery, a new Debenture of the same series
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Debenture, or in lieu of and in substitution for the Debenture
so destroyed, lost or stolen. In every case the applicant for a substituted
Debenture shall furnish to the Company and to the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of the applicant's Debenture and of the ownership
thereof. The Trustee may authenticate any such substituted Debenture and make
available for delivery the same upon the written request or authorization of any
officer of the Company. Upon the issuance of any substituted Debenture, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
In case any Debenture that has matured or is about to mature shall become
mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a
substitute Debenture, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Debenture) if the applicant
for such payment shall furnish to the Company and to the Trustee such security
or indemnity as they may require to save them harmless, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Debenture and of the ownership
thereof.
Every Debenture issued pursuant to the provisions of this Section in
substitution for any Debenture that is mutilated, destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether or
not the mutilated, destroyed, lost or stolen Debenture shall be found at any
time, or be enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Debentures of
the same series duly issued hereunder. All Debentures shall be held and owned
upon the express condition that the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debentures, and shall preclude (to the extent lawful) any and all other rights
or remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
26
33
SECTION 2.8. Cancellation of Surrendered Debentures. All Debentures
surrendered for the purpose of payment, redemption, exchange or registration of
transfer shall, if surrendered to the Company or any paying agent, be delivered
to the Trustee for cancellation, or, if surrendered to the Trustee, shall be
canceled by it, and no Debentures shall be issued in lieu thereof except as
expressly required or permitted by any of the provisions of this Indenture. On
written request of the Company, the Trustee shall deliver to the Company
canceled Debentures held by the Trustee. If the Company shall otherwise acquire
any of the Debentures, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Debentures
unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.9. Provisions of Indenture and Debentures for Sole Benefit of
Parties and Debentureholders. Nothing in this Indenture or in the Debentures,
express or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and the Holders, any legal or
equitable right, remedy or claim under or in respect of this Indenture, or under
any covenant, condition or provision herein contained; all such covenants,
conditions and provisions being for the sole benefit of the parties hereto and
of the Holders.
SECTION 2.10. Appointment of Authenticating Agent. So long as any of
the Debentures of any series remain outstanding there may be an Authenticating
Agent for any or all such series of Debentures, which the Trustee shall have the
right to appoint. Said Authenticating Agent shall be authorized to act on behalf
of the Trustee to authenticate Debentures of such series issued upon exchange,
transfer or partial redemption thereof, and Debentures so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. All references in
this Indenture to the authentication of Debentures by the Trustee shall be
deemed to include authentication by an Authenticating Agent for such series
except for authentication upon original issuance or pursuant to Section 2.07
hereof. Each Authenticating Agent shall be acceptable to the Company and shall
be a corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a trust
business, and that is otherwise authorized under such laws to conduct such
business and is subject to supervision or examination by Federal or State
authorities. If at any time any Authenticating Agent shall cease to be eligible
in accordance with these provisions, it shall resign immediately.
27
34
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. Global Debenture. (a) If the Company shall establish
pursuant to Section 2.01 that the Debentures of a particular series are to be
issued as one or more Global Debentures, then the Company shall execute and the
Trustee shall, in accordance with Section 2.04, authenticate and make available
for delivery, one or more Global Debentures, which shall represent, and shall be
denominated in an aggregate amount equal to the aggregate principal amount of,
all of the Outstanding Debentures of such series, shall be registered in the
name of the Depositary or its nominee, shall be made available for delivery by
the Trustee to the Depositary or pursuant to the Depositary's instruction and
shall bear a legend substantially to the following effect: "Except as otherwise
provided in Section 2.11 of the Indenture, this Debenture may be transferred, in
whole but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Debenture of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary for
such series, or to a successor Depositary for such series selected or approved
by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of Debentures notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
registered or in good standing under the Exchange Act, or other applicable
statute or regulation and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer be applicable to the Debentures of such series and the Company will
execute and, subject to Section 2.05, the Trustee will authenticate and make
available for delivery Debentures of such series in definitive registered form
without coupons, in
28
35
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debentures of such series in exchange for such
Global Debenture. In addition, the Company may at any time determine that the
Debentures of any series shall no longer be represented by one or more Global
Debentures and that the provisions of this Section 2.11 shall no longer apply to
the Debentures of such series. In such event the Company will execute and,
subject to Section 2.05, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and make
available for delivery Debentures of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debentures of such series in
exchange for such Global Debentures. Upon the exchange of the Global Debentures
for such Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debentures shall be canceled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debentures pursuant to this Section 2.11 shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall make available for delivery such Debentures to the
Depositary for delivery to the persons in whose names such Debentures are so
registered.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Debentures may
use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee shall
use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption
or exchange as a convenience to Debentureholders and no representation shall be
made as to the correctness of such numbers either as printed on the Debentures
or as contained in any notice of redemption or exchange and any such redemption
or exchange shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP" or
"CINS" numbers.
ARTICLE 3
SATISFACTION AND DISCHARGE
SECTION 3.1. Satisfaction and Discharge of Indenture. Except as
otherwise specified as contemplated by Section 2.01, this Indenture shall upon
Company Request cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of Debentures herein expressly provided
29
36
for), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) either,
(i) all Debentures theretofore authenticated and
delivered and have been delivered to the Trustee for
cancellation; or
(ii) all such Debentures not theretofore delivered to
the Trustee for cancellation,
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose, an amount sufficient to pay
and discharge the entire indebtedness on such Debentures not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and any interest to the date
of such deposit (in the case of Debentures that have become
due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 5.06, the obligations of
the Company to any Authenticating Agent under Section 2.10 and, if money shall
30
37
have been deposited with the Trustee pursuant to clause 3.01(a)(ii) of this
Section, the obligations of the Trustee under Section 3.02 and the last
paragraph of Section 9.03 shall survive.
SECTION 3.2. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 9.03, all money and U.S. Government Obligations
deposited with the Trustee pursuant to Section 3.01 or 3.03 and all money
received by the Trustee in respect of such U.S. Government Obligations shall be
held in trust and applied by it, in accordance with the provisions of the
Debentures and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent), to the
Persons entitled thereto, of the principal (and premium, if any) and any
interest for whose payment such money and U.S. Government Obligations have been
deposited with or received by the Trustee. Money deposited pursuant to this
Section not in violation of this Indenture shall not be subject to claims of the
holders of Senior Indebtedness under Article 14. All monies deposited with the
Trustee pursuant to Section 3.04 for the payment of Debentures subsequently
converted shall be returned to the Company upon a Company Request. All moneys
deposited with the Trustee pursuant to Section 3.04 for the payment of
Debentures subsequently converted shall be returned to the Company upon Company
Request; provided, that the Company shall have furnished to the Trustee such
security or indemnity as the Trustee may require.
SECTION 3.3. Company's Option to Effect Defeasance or Covenant
Defeasance. If applicable to Debentures of any series, the Company may elect, at
its option at any time, to have Section 3.04 or Section 3.06 applied to any such
series of Debentures or any Debentures of such series, as the case may be,
designated pursuant to Section 2.01 as being defeasible pursuant to such Section
3.04 or 3.06, in accordance with any applicable requirements provided pursuant
to Section 2.01 and upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 2.01 for such Debentures.
SECTION 3.4. Discharge and Defeasance. If this Section 3.04 is
specified, under the terms of Section 2.01, to be applicable to Debentures of
any series, then notwithstanding Section 3.01 and upon compliance with the
applicable conditions set forth in 3.06: (1) the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Debentures of
any such series ("DEFEASANCE") and (2) the provisions of this Indenture as it
relates to such Outstanding Debentures shall no longer be in effect (except (i)
as to the rights of Holders of Debentures of such series to receive, solely from
the
31
38
trust fund described in Section 3.06, payment of (a) the principal of (and
premium, if any) and any installment of principal of (and premium, if any) or
interest on Debentures of such series on the Stated Maturity of such principal
(and premium, if any) or installment of principal (and premium, if any) or
interest or upon optional redemption and/or (b) any mandatory sinking fund
payments or analogous payments applicable to the Debentures of such series on
that day on which such payments are due and payable in accordance with the terms
of the Indenture and of Debentures of such series, (ii) the Company's
obligations with respect to Debentures of such series under Sections 2.06, 2.05,
2.07, 9.02, 9.03, and 9.04 and (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including those under Section 5.08 hereof).
SECTION 3.5. Covenant Defeasance. If this Section 3.05 is specified, as
contemplated by Section 2.01, to be applicable to any series of Debentures or
any Debentures of such series, as the case may be, (a) the Company shall be
released from its obligations under Sections 9.04 through 9.07, inclusive, and
any covenants provided pursuant to Section 2.01(u) or 8.01(b) for the benefit of
the Holders of Debentures of such series that pursuant to the terms of such
Debentures of such series are defeasible pursuant to this Section 3.05 and (b)
the occurrence of any event specified in Sections 4.01(d) (with respect to any
of Sections 9.03 through 9.07, inclusive, and any such covenants provided
pursuant to Sections 2.01(u), 8.01(b) or 8.01(f) and 4.01(g) (if pursuant to the
terms of such Debentures this Section 4.05 is applicable to any such event
specified in Section 4.01(g)) shall be deemed not to be or result in an Event of
Default, in each case with respect to Debentures of such series as provided in
this Section on and after the date the conditions set forth in Section 3.06 are
satisfied (hereinafter called "COVENANT DEFEASANCE"). For this purpose, such
Covenant Defeasance means that, with respect to Debentures of such series, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified Section (to the
extent so specified in the case of Section 4.01(d) and 4.01(g)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision
herein or in any other document, but the remainder of this Indenture and such
Debentures shall be unaffected thereby.
SECTION 3.6. Conditions to Defeasance. The following
shall be the conditions to the application of Section 3.04 or
Section 3.05 to any applicable series of Debentures or any
Debentures of such series, as the case may be
(a) either
32
39
(i) with respect to all Outstanding Debentures of
such series or such Debentures of such Series, as the case may
be, with reference to this Section 3.06, the Company has
deposited or caused to be deposited with the Trustee
irrevocably (but subject to the provisions of Section 3.02 and
the last paragraph of Section 9.03), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Debentures of such series,
(i) lawful money of the United States in an amount, or (ii)
U.S. Government Obligations that through the payment of
interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of
business on the due dates of any payment referred to in clause
(i) or (ii) of this subparagraph (a)(1) lawful money of the
United States in an amount, or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge (A) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest on
such Debentures the Stated Maturity of such principal or
installment of principal or interest or upon optional
redemption and (B) any mandatory sinking fund payments or
analogous payments applicable to the Debentures of such series
on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of the
Debentures of such series; or
(ii) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 2.01, to be applicable to the
Debentures of such series;
(b) the Company has paid or caused to be paid all other sums
payable with respect to the Debentures of such series;
(c) such deposit for the benefit of Holders of Debentures of
such series will not result in a breach or violation of, or constitute
a default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(d) no Event of Default or event that with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Debentures of such series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 4.01(e) or
33
40
Section 4.01(f) or event that, with the giving of notice or lapse of
time, or both, would become an Event of Default under Section 4.01(e)
or Section 4.01(f), shall have occurred and be continuing on the 91st
day after such date;
(e) in the event of an election to have Section 3.04 apply to
the Debentures of any series, the Company has delivered to the Trustee
an Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a
change in applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of Debentures of such series will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred;
(f) in the event of an election to have Section 3.05 apply to
Debentures of any series, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of
Debentures of such series will not recognize gain or loss for federal
income tax purposes as a result of the deposit and Covenant Defeasance
to be effected with respect to the Debentures of such series and will
be subject to United States federal income tax on the same amount, in
the same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur;
(g) if the Debentures of such series are then listed on any
domestic or foreign securities exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that such
deposit, defeasance and discharge will not cause the Debentures of such
series to be delisted;
(h) no default in the payment of the principal (and premium,
if any) or any interest on any Senior Indebtedness beyond any
applicable grace period shall have occurred and be continuing;
(i) no other default with respect to any Senior Indebtedness
shall have occurred and be continuing and shall have resulted in the
acceleration of such Senior Indebtedness; and
34
41
(j) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the Defeasance or Covenant
Defeasance with respect to Debentures of such series have been complied
with and an Opinion of Counsel to the effect that either (i) as a
result of such deposit and the related exercise of the Company's option
under this Article, registration is not required under the Investment
Company Act of 1940, as amended, by the Company, the trust funds
representing such deposit or the Trustee or (ii) all necessary
registrations under said Act have been effected.
Any deposits with the Trustee referred to in Section 3.06(a)(i) shall
be irrevocable and shall be made under the terms of an escrow/trust agreement in
form and substance satisfactory to the Trustee. If any Outstanding Debentures of
such series are to be redeemed prior to their Stated Maturity, whether pursuant
to any optional redemption provisions or in accordance with any mandatory
sinking fund requirement, the applicable escrow trust agreement shall provide
therefor and the Company shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Upon Defeasance with respect to all the Debentures of any series, the
terms and conditions of the Debentures of such series, including the terms and
conditions with respect thereto set forth in this Indenture, shall no longer be
binding upon, or applicable to, the Company; provided, that the Company shall
not be discharged from any payment obligations in respect of Debentures of such
series that are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
3.06) of the Company under this Indenture with respect to the Debentures of any
series, the obligations of the Company to the Trustee under Section 5.06, and
the obligations of the Trustee under Section 3.02 and the last paragraph of
Section 9.03 shall survive with respect the Debentures of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in this Section 3.06
35
42
with respect to Debentures of any series that, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof that would then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to Debentures of such
series.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to this Section 3.06 or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of Outstanding Debentures.
ARTICLE 4
REMEDIES
SECTION 4.1. Events of Default. "EVENT OF DEFAULT," wherever used
herein with respect to Debentures of any series, unless otherwise provided the
applicable supplemental indenture, means any one or more of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest upon any Debenture
of such series when it becomes due and payable, and continuance of such
default for a period of 30 days (whether or not such payment is
prohibited by the subordination provisions set forth in Article 13
hereof); provided, that a valid extension of an interest payment period
by the Company in accordance with the terms of any indenture
supplemental hereto, shall not constitute a default in the payment of
interest for this purpose; or
(b) default in the payment of the principal of (or premium, if
any, on) any Debenture of such series as and when the same shall become
due and payable whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series (whether or not such payment is
prohibited by the subordination provisions set forth in Article 13
hereof); provided, that a valid extension of the maturity of the
Debentures of such series in accordance with the terms of any indenture
supplemental hereto
36
43
shall not constitute a default in the payment of principal or premium,
if any; or
(c) if the Debentures of such series are convertible or
exchangeable into or for shares of Common Stock of the Company or other
securities, cash or other property pursuant to any supplemental
indenture, Board Resolution or other instrument authorizing Debentures
of such series, failure by the Company to convert such Debentures
(whether or not conversion or exchange is prohibited by the
subordination provisions set forth in Article 13); or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or that has expressly been
included in this Indenture solely for the benefit of any series of
Debentures other than such series), and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Debentures of such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "NOTICE OF DEFAULT"
hereunder; or
(e) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated as bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of
37
44
any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal or state law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidation, assignee, trustee,
sequestrator or similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors; or
(g) in the event Debentures of any series are issued to a
Federal-Mogul Trust or a trustee of such trust in connection with the
issuance of Trust Securities by such Federal-Mogul Trust, such
Federal-Mogul Trust shall have voluntarily or involuntarily dissolved,
wound-up its business or otherwise terminated its existence except in
connection with (i) the distribution of Debentures of such series to
holders of Trust Securities in liquidation of their interest in such
Federal-Mogul Trust, (ii) the redemption of all of the outstanding
Trust Securities of such Federal-Mogul Trust or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration
of such Federal-Mogul Trust; or
(h) any other Event of Default provided pursuant to Section
2.01 with respect to Debentures of such series.
SECTION 4.2. Acceleration of Maturity; Recission and Annulment. If an
Event of Default described in clause (a), (b), (c), (d), (g) or (h) (if the
Event of Default under clause (d) is with respect to less than all series of
Debentures then Outstanding) of Section 4.01 above occurs and is continuing,
then, and in each and every such case, unless the principal of all of the
Debentures of such series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Debentures of such series then Outstanding hereunder (each such series voting as
a separate class), by notice in writing to the Company (and to the Trustee if
given by the Holders of Debentures of such series), may declare the entire
principal (or, if the Debentures of such series are Original Issue Discount
Debentures, such portion of the principal amount as may be specified in the
terms of such series) of all Debentures of such series and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of
Default described in clause (d) (if the Event of Default under clause (d)
relates to all series of Debentures then Outstanding), (e) or (f) of Section
4.01 occurs and is continuing, then and in each and every such case, unless the
principal of all the Debentures of all series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Debentures of all series then Outstanding
38
45
hereunder (treated as one class), by notice in writing to the Company (and to
the Trustee if given by Holders of Debentures), may declare the entire principal
(or, if any Debentures are Original Issue Discount Debentures such portion of
the principal as may be specified in the terms thereof) of all Debentures of all
series then Outstanding and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if any Debentures are Original Issue
Discount Debentures, such portion of the principal as may be specified in the
terms thereof) of the Debentures of any series (or of all the Debentures of all
series, as the case may be) then Outstanding shall have been so declared due and
payable, and before any judgment or decree for the payment of such moneys shall
have been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Debentures of such series (or of all Debentures of all
series, as the case may be) and the principal of (and premium, if any on)
Debentures of such series (or of all Debentures of all series, as the case may
be) that shall have become due otherwise than by acceleration (with interest
upon such principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Debentures) specified in the Debentures of such series (or at the
respective rates of interest or Yields to Maturity of all Debentures of all
series, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
and each predecessor Trustee, their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture, other than the
non-payment of the principal of Debentures of such series (or, if any Debentures
are Original Issue Discount Debentures, such portion of the principal as may be
specified in the terms thereof) that shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein -- then
and in every such case the Holders of a majority in aggregate principal amount
of all the Debentures of such series, each series voting as a separate class (or
of all Debentures of all series, as the case may be, voting as a single class),
then Outstanding, by written notice to the Company and to the Trustee, may waive
all such defaults with respect to the Debentures of such series (or with respect
to all Debentures of all series, as the case may be) and rescind and annul such
declaration and its consequence, but no such waiver or rescission and annulment
39
46
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right with
respect to Debentures of such series under this Indenture and such proceedings
shall have been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined adversely to the
Trustee, then and in every such case the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company and the Trustee shall continue as
though no such proceedings had been taken.
SECTION 4.3. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(a) default is made in the payment of any interest on any
Debenture of any series, or any payment required by any sinking or
analogous fund established with respect to Debentures of such series as
and when the same shall have become due and payable and such default
continues for a period of 30 days (provided that a valid extension of
the interest payment period permitted by the terms of the supplemental
indenture or Board Resolutions setting forth the terms of the
Debentures of such series shall not constitute a default in the payment
of interest), or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Debenture of any series when the same shall
have become due and payable, whether upon maturity of the Debentures of
such series or upon redemption or upon declaration or otherwise,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Debentures of such series, the whole amount then due and payable on
such Debentures of such series and any premium and interest and, to the extent
that payment of such interest shall be legally enforceable under applicable law,
interest on any overdue principal and on the premium, if any, and overdue
interest, at the rate or rates prescribed therefor in Debentures of such series
and, if the Debentures of such series are held by a Federal-Mogul Trust or a
trustee of such trust, without duplication of any other amounts paid by such
Federal- Mogul Trust or trustee in respect thereof, upon overdue installments of
interest at the rate per annum expressed in the Debentures of such series; and
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of
40
47
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel under Section 5.06.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon Debentures of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon Debentures of
such series, wherever situated.
If an Event of Default with respect to Debentures of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Debentures of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, either at law or in equity or in
bankruptcy or otherwise whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 4.4. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Debentures of any series or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Debentures of such series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal and any premium and interest owing and unpaid in respect of
the Debentures of any series and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders of Debentures of such series, and
41
48
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Debentures of such series to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Debentures of such series, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 5.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Debenture of any series, any plan of reorganization, arrangement, adjustment or
composition affecting the Debentures of such series or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of Debentures of any series in any such proceeding.
SECTION 4.5. Trustee May Enforce Claims Without Possession of
Debentures. All rights of action and claims under this Indenture or under any of
the terms established with respect to the Debentures of any series may be
prosecuted and enforced by the Trustee without the possession of any of the
Debentures of such series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel due under
Section 5.06, be for the ratable benefit of the Holders of the Debentures of
such series in respect of which such judgment has been recovered.
SECTION 4.6. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article with respect to Debentures of any series shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Debentures of such series, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 5.06;
42
49
SECOND: To the payment of all Senior Indebtedness of
the Company and to the extent required by Article 13:
THIRD: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Debentures of such
series in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Debentures of such series
for principal and any premium and interest, respectively; and
FOURTH: To the payment of the remainder, if any, to
the Company.
SECTION 4.7. Limitation on Suits. No Holder of any
Debenture of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless;
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Debentures
of such series and of the continuance thereof with respect to the
Debentures of such series specifying such Event of Default, as
hereinbefore provided;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Debentures of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in principal amount of the Outstanding Debentures of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such
43
50
Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 4.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, but
subject to Article 13 of this Indenture, the Holder of any Debenture of any
series shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 2.03)
interest on Debenture of such series on the Stated Maturity or Maturities
expressed in Debentures of such series (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 4.9. Restoration of Rights and Remedies. If the Trustee or any
Holder of Debentures of any series has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders of Debentures of such
series shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 4.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debentures in the last paragraph of Section 2.07, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Debentures is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 4.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Debenture to exercise any right or remedy
accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Subject to the provisions of Section 4.07,
every right and remedy given by this Article or by law to the Trustee or to the
44
51
Holders of Debentures may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Debentures, as the case
may be.
SECTION 4.12. Control by Holders of Debentures. The Holders of a
majority in aggregate principal amount of the Outstanding Debentures of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Debentures of such
series; provided, that
(a) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee; provided, that such direction shall not be in conflict with
any rule of law or with this Indenture or be unduly prejudicial to the
rights of Holders of Debentures of any other series at the time
Outstanding. Subject to the provisions of Section 5.02, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would involve
the Trustee in personal liability.
SECTION 4.13. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Debentures of any series may on
behalf of the Holders of all the Debentures of such series waive any past
default hereunder with respect to the Debentures of such series and its
consequences, except a default
(a) in the payment of the principal of (or premium, if any) or
any interest on any Debenture of such series as and when the same shall
become due by the terms of Debentures of such series otherwise than by
acceleration (unless such default has been cured and sums sufficient to
pay all matured installments of interest and principal and any premium
has been deposited with the Trustee (in accordance with Section 4.02),
or
(b) in respect of a covenant or provision hereof that under
Article 8 cannot be modified or amended without the consent of the
Holder of each Outstanding Debenture of such series affected;
45
52
provided, that if the Debentures of such series are held by a Federal-Mogul
Trust or a trustee of such trust, such waiver or modification to such waiver
shall not be effective until the holders of a majority in liquidation preference
of Trust Securities of the applicable Federal-Mogul Trust shall have consented
to such waiver or modification to such waiver; provided further, that if the
consent of the Holder of each Outstanding Debenture of such series is required,
such waiver shall not be effective until each holder of the Trust Securities of
the applicable Federal-Mogul Trust shall have consented to such waiver; provided
further, that a default in respect of any covenant or provision contained in
Article 12 may only be waived by the Holders affected thereby.
Upon any such waiver, the default covered thereby shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture and the Company, the Trustee and the Holders
of the Debentures of such series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 4.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Debenture by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Debentures of
any series, or to any suit instituted by any Holder of any Debenture for the
enforcement of the payment of the principal of or any premium or interest on
such Debenture on or after the Stated Maturity or Maturities expressed in such
Debenture (or, in the case of redemption, on or after the Redemption Date).
SECTION 4.15. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
46
53
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 5
THE TRUSTEE
SECTION 5.1. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Debentures issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Debentures of a such series and after the curing or
waiving of all Events of Default that may have occurred with respect to
Debentures of such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default with respect to the Debentures of such series has occurred (which has
not been cured or waived), the Trustee shall exercise with respect to the
Debentures of such series such of the rights and powers vested in it by this
Indenture, and shall 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.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to the Debentures of any series and after the curing or waiving
of all such Events of Default with respect to the Debentures of such
series that may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Debentures of such series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee: and
47
54
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statement,
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 4.12 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or Power conferred upon the
Trustee, under this Indenture.
No provision of this Indenture shall require the Trustee to extend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
SECTION 5.2. Certain Rights of Trustee. Subject to the
provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate and any
48
55
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Debentures of any series pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities that might be incurred by it in compliance with such
request or direction, including such reasonable advances as may be
requested by the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it
49
56
by this Indenture, unless the Trustee was negligent in ascertaining
the pertinent facts; and
(i) the Trustee shall not be deemed to have notice of any
default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Debentures and this Indenture.
SECTION 5.3. Not Responsible for Recitals or Issuance of Debentures.
The recitals contained herein and in the Debentures (except the Trustee's
certificates of authentication) shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of any Debentures. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Debentures or the proceeds thereof.
SECTION 5.4. May Hold Debentures. The Trustee, any Authenticating
Agent, any Paying Agent, or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Debentures and, subject
to Section 5.09 and 5.11, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
or such other agent.
SECTION 5.5. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 5.6. Compensation and Reimbursement. The Company agrees:
(a) to pay to the Trustee or any successor Trustee from time
to time such compensation as shall be agreed in writing between the
Company and the Trustee for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee or any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the
50
57
compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim,
liability or expense, including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 4.01(e) or Section 4.01(f), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar laws.
The Trustee shall have a lien prior to the Debentures as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 5.06, except with respect to funds
held in trust for the benefit of the Holders of particular Debentures.
The provisions of this Section 5.06 shall survive the termination of
this Indenture.
SECTION 5.7. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 5.08.
(b) The Trustee may resign at any time with respect to the Debentures
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 5.08 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debentures of such series.
51
58
(c) The Trustee may be removed at any time with respect to the
Debentures of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debentures of such series delivered to the Trustee and to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 5.08 shall not have been delivered to the Trustee within 30 days after
the delivery of such Act of removal, the Trustee being removed may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Debentures of such series.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act after written request therefor by the Company
or by any Holder of a Debenture who has been a bona fide Holder of a
Debenture for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.10
and Section 310(a) of the Trust Indenture Act and shall fail to resign
after written request therefor by the Company or by any such Holder of
a Debenture who has been a bona fide Holder of Debenture for at least
six months, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(A) the Company by a Board Resolution may remove the Trustee with respect to all
Debentures, or
(B) subject to Section 4.14 any Holder of a Debenture who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Debentures and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Debentures of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Debentures
52
59
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Debentures of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Debentures of any particular series) and shall comply with the applicable
requirements of Section 5.08. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Debentures of any series shall be appointed by Act of the
Holders of a majority in principal amount of Outstanding Debentures of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 5.08, become the
successor Trustee with respect to the Debentures of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debentures of any series shall have been so
appointed by the Company or the Holders of Debentures of such series and
accepted appointment in the manner required by Section 5.08, any Holder of a
Debenture of such series who has been a bona fide Holder of a Debenture of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debentures of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debentures of any series and each appointment
of a successor Trustee with respect to the Debentures of any series in the
manner provided in Section 1.06. Each notice shall include the name of the
successor Trustee with respect to the Debentures of such series and the address
of its Corporate Trust Office.
SECTION 5.8. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Debentures,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but on the written request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
53
60
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debentures of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Debentures of
such series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and that (i) shall contain
such provisions as shall be necessary or desirable to transfer and conform to,
and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debentures of such series to which
the appointment of such successor Trustee relates, (ii) if the retiring Trustee
is not retiring with respect to all Debentures, 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 Debentures of such
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debentures of such series to which
the appointment of such successor Trustee relates; but, on the written request
of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Debentures of such
series to which the appointment of such successor Trustee relates.
(c) Upon the written request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 5.9. Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of Section 310(b)
of the
54
61
Trust Indenture Act, the Trustee and the holder of Common Securities (as if it
were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
SECTION 5.10. Corporate Trustee Required; Eligibility. There shall be
at all times a Trustee hereunder, which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $500,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereunder specified in this Article.
SECTION 5.11. Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Debentures), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
SECTION 5.12. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debentures shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Debentures so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debentures.
SECTION 5.13. Notice of Defaults. If a default occurs hereunder with
respect to Debentures of any series, the Trustee shall give the Holders of
Debentures of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, that in the case of any default of the
character specified in Section 4.01(d) with respect to Debentures of such
series, no such
55
62
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
that is, or after notice or lapse of time or both would become, an Event of
Default with respect to Debentures of such series.
ARTICLE 6
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.1. Preservation of Information: Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Debentures (i) contained in
the most recent list furnished to the Trustee as provided in Section 312(a) of
the Trust Indenture Act, (ii) received by the Trustee in its capacity as
Debenture Registrar and (iii) filed with it within the two preceding years
pursuant to Section 313(c)(2) of the Trust Indenture Act.
(b) If three or more Holders of Debentures of any series (herein
referred to as "APPLICANTS") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Debenture of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Debentures of such series with respect to
their rights under this Indenture or under the Debentures of such series and is
accompanied by a copy of the form of proxy or other communication that such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 6.01(a), or
(ii) inform such applicants as to the approximate number of
Holders of Debentures of such series whose names and addresses appear
in the information preserved at the time by the Trustee in accordance
with Section 6.01(a), and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in
such application.
56
63
(c) Every Holder of Debentures, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Debentures in accordance with Section 6.01(b), regardless of the source from
which such information was derived and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 6.01(b).
SECTION 6.2. Reports by Trustee. The Trustee shall in each year
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each May 15 following
the date of this Indenture deliver to Holders a brief report, dated as of such
May 15, which complies with the provisions of Section 313(a). The trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 6.3. Reports by Company. The Company shall file with the
Trustee such documents, reports and information as required by Section 314 (if
any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act. The Company shall transmit information to the
Holders of the Debentures as required by Section 313(c) of the Trust Indenture
Act.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
ARTICLE 7
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 7.1. Company May Consolidate, Etc. on Certain Terms. The
Company shall not merge or consolidate with any other corporation or sell or
convey all or substantially all of its assets to any Person, unless (a) either
the Company shall be the continuing corporation, or the successor corporation
(if
57
64
other than the Company) shall be a corporation organized under the laws of the
United States of America or any State thereof and shall expressly assume the due
and punctual payment of the principal of and interest on all the Debentures,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Company, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation, and (b) the Company
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition.
SECTION 7.2. Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein. Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Company prior to such succession any or
all of the Debentures issuable hereunder that theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall make available for delivery any securities that
previously shall have been signed and delivered by the officers of the Company,
to the Trustee for authentication, and any Debentures that such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All of the Debentures so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Debentures theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Debentures had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Debentures thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Company or any successor corporation that shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Debentures and
may be liquidated and dissolved.
SECTION 7.3. Opinion of Counsel to Trustee. The Trustee may receive an
Opinion of Counsel, prepared in accordance with Section 1.02, as conclusive
58
65
evidence that any such consolidation, merger, sale, lease or conveyance, and any
such assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Debentures, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Debentures; or
(b) to add to the covenants of the Company for the benefit of
the Holders of Debentures of all or any series (and if such covenants
are to be for the benefit of Debentures of less than all series,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(c) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(d) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of Debentures of less than
all series, stating that such Events of Default are expressly being
included solely for the benefit of such series); or
(e) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Debenture Outstanding of any series
created prior to the execution of such supplemental indenture that is
entitled to the benefit of such provision; or
59
66
(f) to establish the form or terms of Debentures of any series
as permitted by Sections 2.01; or
(g) to evidence and provide for the acceptance of appointment
thereunder by a successor Trustee with respect to the Debentures of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 5.08(b); or
(h) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article 12, including providing
for the conversion of the Debentures into any security or property
(other than the Common Stock of the Company); or
(i) to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided, that such action
shall not adversely affect the interests of the Holders of Debentures
of any series in any material respect.
SECTION 8.2. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Debentures of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Debentures of such series under this Indenture; provided, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Debenture affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debenture of any
series, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Debenture
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 4.02 or change the coin or
currency in which any
60
67
Debenture or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Debentures of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of certain defaults hereunder and
their consequences provided for in this Indenture, or
(c) modify any of the provisions of this Section or Section
4.13, except to increase the percentage of Outstanding Debentures of
any series the consent of the Holders of which is required pursuant to
such provisions or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Debenture affected thereby, or
(d) make any change that adversely affects the right to
convert any Debenture of any series as provided in Article 12 or
pursuant to Section 2.01 (except as permitted by Section 8.01) or
decrease the conversion rate or increase the conversion price of any
such Debenture of such series, or
(e) if the Debentures of any series are secured, change the
terms and conditions pursuant to which the Debentures of such series
are secured in a manner adverse to the Holders of the secured
Debentures of such series, or
(f) make any change in Article 13 that adversely affects the
rights of any Holders of Outstanding Debentures of such series,
If the Debentures of such series are held by a Federal-Mogul Trust or a
trustee of such trust, such supplemental indenture shall not be effective until
the holders of a majority in liquidation preference of Trust Securities of the
applicable Trust shall have consented to such supplemental indenture; provided,
that if the consent of the Holder of each Outstanding Debenture of such series
is required, such supplemental indenture shall not be effective until each
holder of the Trust Securities of the applicable Federal-Mogul Trust shall have
consented to such supplemental indenture.
61
68
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of Debentures of one or more particular series, or that modifies the
rights of the Holders of Debentures of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debentures of any other series.
It shall not be necessary for any Act of Holders of Debentures of any
series under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 8.3. Execution of Supplemental Indentures. In executing or
accepting the additional trusts created by any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
5.02) 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 that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 8.4. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Debentures theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 8.5. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act of 1939, as amended, in effect on such date.
SECTION 8.6. Reference in Debentures to Supplemental Indentures.
Debentures of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Debentures of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and made available for delivery by the
Trustee in exchange for Outstanding Debentures of such series.
62
69
ARTICLE 9
COVENANTS
SECTION 9.1. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of Debentures of any series that it will
duly and punctually pay the principal of and any premium and interest on the
Debentures of such series in accordance with the terms of the Debentures of such
series and this Indenture.
SECTION 9.2. Maintenance of Office or Agency. So long as any series of
the Debentures remain outstanding, the Company agrees to maintain an office or
agency in the Borough of Manhattan, The City and State of New York, with respect
to each such series and at such other location or locations as may be designated
as provided in this Section 9.02, where (i) Debentures of that series may be
presented for payment, (ii) Debentures of that series may be presented as herein
above authorized for registration of transfer and exchange, and (iii) notices
and demands to or upon the Company in respect of the Debentures of that series
and this Indenture may be given or served, such designation to continue with
respect to such office or agency until the Company shall, by written notice
signed by its President or a Vice President and delivered to the Trustee,
designate some other office or agency for such purposes or any of them. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, notices and demands.
SECTION 9.3. Money for Debentures Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to Debentures
of any series, it will, on or before each due date of the principal of and any
premium or interest on any of the Debentures of such series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal and any premium or interest so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure to act.
Whenever the Company shall have one or more Paying Agents for
Debentures of any series it will, prior to each due date of the principal of and
any premium or interest on any Debentures of such series, deposit with a Paying
63
70
Agent a sum sufficient to pay the principal and any premium or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure to act.
The Company will cause each Paying Agent for Debentures of any series
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of and any premium or interest on Debentures of such series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Debentures of such series) in the making of
any payment of principal of and any premium or interest on the
Debentures of such series;
(c) comply with the provisions of the Trust Indenture Act
applicable to it as Paying Agent; and
(d) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Debenture of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
64
71
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of the Debenture of
such series shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money and all liability of the Company as
trustee thereof shall thereupon cease; provided, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in an Authorized Newspaper in each Place
of Payment, notice that such money remains unclaimed and that after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 9.4. Limitation on Dividends; Transactions with Affiliates. If
Debentures of any series are issued to a Federal- Mogul Trust or a trustee of
such trust in connection with the issuance of Trust Securities by such
Federal-Mogul Trust and (a) there shall have occurred any event that would
constitute an Event of Default, (b) the Guarantor shall be in default with
respect to its payment of any obligations under the Preferred Securities
Guarantee or the Common Securities Guarantee relating to such Federal-Mogul
Trust, or (c) the Company shall have given notice of its election to defer
payments of interest on Debentures of such series by extending the interest
payment period as provided herein and such period, or any extension thereof,
shall be continuing, then the Company (y) shall not declare or pay any dividend
on, make any distributions with respect to, or redeem, purchase or acquire, or
make a liquidation payment with respect to, any of its capital stock (other than
(i) purchases or acquisitions of shares of Common Stock in connection with
satisfaction by the Company or any of its subsidiaries of their respective
obligations under any employee benefit plans, (ii) as a result of a
reclassification of capital stock of the Company or the exchange or conversion
of one class or series of the Company's capital stock for another class or
series of capital stock of the Company or (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock of the Company or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, and (z) shall not make any payment of interest, principal or premium,
if any, on, or repay, repurchase or redeem, any debt securities (including
guarantees) issued by the Company that rank pari passu with or junior to the
Debentures of such series.
SECTION 9.5. Covenants as to Federal-Mogul Trust. In the
event Debentures are issued to a Federal-Mogul Trust or a trustee
of such trust in connection with the issuance of Trust Securities
by such Federal-Mogul Trust, for
65
72
so long as such Trust Securities remain outstanding, the Company will (a)
maintain 100% direct or indirect ownership of the Common Securities of such
Federal-Mogul Trust; provided, that any permitted successor of the Company under
the Indenture may succeed to the Company's ownership of the Common Securities,
(b) use its reasonable efforts to cause such Federal-Mogul Trust (i) to remain a
statutory business trust, except in connection with a distribution of Debentures
of such series to the holders of Trust Securities in liquidation of such
Federal-Mogul Trust, the redemption of all of the Trust Securities of such
Trust, or certain mergers, consolidations or amalgamations, each as permitted by
the Declaration, (ii) to continue to be classified as a grantor trust for United
States federal income tax purposes and (iii) to continue to qualify for an
exemption from registration under the Investment Company Act of 1940, as
amended, and (c) use its reasonable efforts to cause each holder of Trust
Securities to be treated as owning an undivided beneficial interest in the
Debentures of such series.
SECTION 9.6. Existence. Subject to Article 7, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 9.7. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers' Certificate signed by its
principal executive officer, principal financial officer or principal accounting
officer stating whether or not to the best knowledge of the signer thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture, and if the Company shall be in
default, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
The Company shall file with the Trustee written notice of the
occurrence of any default relating to an Event of Default of the type described
in clause (e), (f) or (g) of Section 4.01 or any Event of Default within five
Business Days of its becoming aware of any such default or Event of Default.
SECTION 9.8. Financial Information; SEC Reports. The Company shall file
with the Trustee, within 15 days after it files any annual and quarterly
reports, information, documents and other reports with the Commission, copies of
its annual report and of the information, documents and other reports (or copies
of
66
73
such portions of any of the foregoing as the Commission may by rules and
regulations prescribe) that the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act.
If at any time, the Company is not required to file any such reports
with the Commission, the Company will deliver to the Trustee (a) as soon as
available and in any event within 90 days after the end of each fiscal year of
the Company (i) a consolidated balance sheet of the Company and its Subsidiaries
as of the end of such fiscal year and the related consolidated statements of
operations, stockholders' equity and cash flows for such fiscal year, all
reported on by an independent public accountant of nationally recognized
standing and (ii) a report containing a management's discussion and analysis of
the financial condition and results of operations and a description of the
business and properties of the Company and (b) as soon as available and in any
event within 45 days after the end of each of the first three quarters of each
fiscal year of the Company (i) an unaudited consolidated financial report for
such quarter and (ii) a report containing a management's discussion and analysis
of the financial condition and results of operations of the Company; provided,
that the foregoing shall not be required for any fiscal year or quarter, as the
case may be, with respect to which the Company files or expects to file with the
Trustee an annual report or quarterly report, as the case may be, pursuant to
the second paragraph of this Section 9.08.
With respect to Debentures originally issued in an offering not
registered pursuant to the Securities Act, if prior to the Transfer Restriction
Termination Date, the Company is neither subject to Section 13 or 15(d) of the
Exchange Act, the Company shall at the request of any Holder provide to such
Holder and any prospective purchaser designated by such Holder such information,
if any, required by Rule 144A(d)(4) under the Securities Act.
ARTICLE 10
REDEMPTION OF DEBENTURES
SECTION 10.1. Applicability of Article. Debentures of any series that
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
2.01 for Debentures of any series) in accordance with this Article.
SECTION 10.2. Election to Redeem; Notice to Trustee. The election of
the Company to redeem Debentures of any series shall be evidenced by an
Officers'
67
74
Certificate. In the case of any redemption, at the election of the Company, the
Company shall, upon not less than 40 nor more than 60 days prior to the
Redemption Date fixed by the Company, notify the Trustee of such Redemption
Date and of the principal amount of Debentures of such series to be redeemed.
In the case of any redemption of Debentures of such series (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Debentures of such series or elsewhere in this Indenture, or (b) pursuant to an
election of the Company that is subject to a condition specified in the terms
of Debentures of such series, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 10.3. Selection by Trustee of Debentures to Be Redeemed. If
less than all the Debentures of any series and of like tenor are to be redeemed,
the particular Debentures of such series to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Debentures of such series and of like tenor not previously called
for redemption. If the Outstanding Debentures have not been distributed to the
Holders of Trust Securities upon a dissolution of the Federal-Mogul Trust (where
applicable), the Debentures to be redeemed may be selected by such method as the
Trustee shall deem fair and appropriate and that may provide for the selection
of portions (equal to the minimum authorized denomination for Debentures of such
series or any integral multiple thereof) of the principal amount of Registered
Debentures of such series of a denomination larger than the minimum authorized
denomination for Debentures of such series. If the Outstanding Debentures have
been distributed to the Holders of Trust Securities, then the Trustee must
redeem the Outstanding Debentures pro rata.
If Debentures of any series selected for partial redemption are
converted in part before termination of the conversion right with respect to the
portion of the Debenture of such series so selected, the converted portion of
the Debentures of such series shall be deemed (so far as may be) to be the
portion selected for redemption. Debentures (or portions thereof) that have been
converted during a selection of Debentures of such series to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection. In
any case where more than one Debenture of such series is registered in the same
name, the Trustee in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Debenture of such series.
The Trustee shall promptly notify the Company in writing of the
Debentures of such series selected for redemption and, in the case of any
68
75
Debentures of such series selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures of such series
of such series shall relate, in the case of any Debentures of such series
redeemed or to be redeemed only in part, to the portion of the principal amount
of the Debentures of such series that has been or is to be redeemed.
SECTION 10.4. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 1.06 to the Holders of Debentures to be
redeemed not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall identify the Debentures (including the
CUSP number) to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Debentures of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debentures of such
series to be redeemed, and a statement to the effect that on or after
the Redemption Date upon surrender of such Debenture a new Debenture of
such series in the principal amount equal to the unredeemed portion
will be issued;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture of such series to be
redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date;
(e) the place or places where such Debentures of such series,
maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the
case; and
(g) if applicable, the conversion rate or price, the date on
which the right to convert the Debentures of such series to be redeemed
will
69
76
terminate and the place or places where such Debentures may be surrendered for
conversion.
A notice of redemption published as contemplated by Section 1.06 need
not identify particular Registered Debentures of such series to be redeemed.
Notice of redemption of Debentures to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 10.5. Deposit of Redemption Price. Prior to 10:00 A.M., New
York time, on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 9.03) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Debentures that
are to be redeemed on that date.
If any Debenture called for redemption is converted into Common Stock
of the Company, any money deposited with the Trustee or with any Paying Agent or
so segregated and held in trust for the redemption of such Debenture shall
(subject to any right of the Holder of such Debenture or any Predecessor
Debenture to receive interest as provided in Section 2.03) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 10.6. Debentures Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Debentures so to be redeemed
shall on the Redemption Date become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Debentures shall cease to bear interest. Upon surrender of any such Debenture
for redemption in accordance with said notice maturing after the Redemption
Date, such Debenture shall be paid by the Company at the Redemption Price
together with accrued interest to the Redemption Date; provided, that, unless
otherwise specified as contemplated by Section 2.01, installments of interest on
Registered Debentures whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Debentures or one or more
Predecessor Debentures, registered as such at the close of business on the
relevant record dates according to their terms and the provisions of Section
2.03.
70
77
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Debenture.
SECTION 10.7. Debentures Redeemed in Part. Any Registered Debenture of
any series that is to be redeemed only in part shall be surrendered at a Place
of Payment therefor (with due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Debenture without service charge, a new
Registered Debenture or Debentures of such series and of like tenor of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Debenture of such series so surrendered.
ARTICLE 11
SINKING FUNDS
SECTION 11.1. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Debentures of any
series except as otherwise specified as contemplated by Section 2.01 for
Debentures of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT," and any payment in excess of such minimum amount provided for by
the terms of Debentures of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT." If provided for by the terms of Debentures of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 11.02. Each sinking fund payment shall be applied to the
redemption of Debentures of any series as provided for by the terms of
Debentures of such series.
SECTION 11.2. Satisfaction of Sinking Fund Payments with Debentures .
The Company (a) may deliver Outstanding Debentures of any series (other than any
previously called for redemption (b) an may apply as a credit Debentures of such
series that have been redeemed either at the election of the Company pursuant to
the terms of the Debentures of such series or through the application
71
78
of permitted optional sinking fund payments pursuant to the terms of the
Debentures, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Debentures of such series required to be made
pursuant to the terms of the Debentures of such series; provided, that the
Debentures of such series have not been previously so credited. The Debentures
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in the Debentures of such series for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 11.3. Redemption of Debentures for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for Debentures of any series,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for such series pursuant to the
terms of such series, the portion thereof, if any, that is to be satisfied by
payment of cash and the portion thereof, if any, that is to be satisfied by
delivering and crediting Debentures of such series pursuant to Section 11.02 and
will also deliver to the Trustee any Debentures of such series to be so
delivered. Not less than 45 days before each such sinking fund payment date the
Trustee shall select the Debentures of such series to be redeemed upon such
sinking fund payment date in the manner specified in Section 10.03 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 10.04. Such notice having been
duly given, the redemption of such Debentures of such series shall be made upon
the terms and in the manner stated in Sections 10.06 and 10.07.
ARTICLE 12
CONVERSION OF DEBENTURES
SECTION 12.1. Applicability of Article. The provisions of this Article
shall be applicable to the Debentures of any series that are convertible into
shares of Common Stock of the Company, and the issuance of such shares of Common
Stock upon the conversion of Debentures of such series, except as otherwise
specified as contemplated by Section 2.01 for the Debentures of such series. The
terms and provisions applicable to the conversion of Debentures of any series
into securities of the Company (other than Common Stock) shall, if applicable,
be set forth in an Officers' Certificate or established in one or more
indentures supplemental hereto, prior to the issuance of Debentures of such
series in accordance with Section 2.01.
72
79
SECTION 12.2. Exercise of Conversion Privilege. In order to exercise a
conversion privilege, the Holder of a Debenture of any series with such a
privilege shall surrender such Debenture to the Company at the office or agency
maintained for that purpose pursuant to Section 1.02, accompanied by written
notice to the Company that the Holder elects to convert such Debenture or a
specified portion thereof. Such notice shall also state, if different from the
name and address of such Holder, the name or names (with address) in that the
certificate or certificates for shares of Common Stock that shall be issuable on
such conversion shall be issued. Debentures of such series surrendered for
conversion shall (if so required by the Company or the Trustee) be duly endorsed
by or accompanied by instruments of transfer in forms satisfactory to the
Company and the Trustee duly executed by the registered Holder or its attorney
duly authorized in writing. As promptly as practicable after the receipt of such
notice and of any payment required pursuant to a Board Resolution and, subject
to Section 2.01, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto setting forth the terms of Debentures and the surrender of such
Debentures in accordance with such reasonable regulations as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency at
which such Debenture is surrendered, to such Holder or on its written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such Debenture (or specified portion thereof),
in accordance with the provisions of such Board Resolution, Officers'
Certificate or supplemental indenture, and cash as provided therein in respect
of any fractional share of such Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which such notice and such
payment, if required, shall have been received in proper order for conversion by
the Company and such Debenture shall have been surrendered as aforesaid (unless
such Holder shall have so surrendered such Debenture and shall have instructed
the Company to effect the conversion on a particular date following such
surrender and such Holder shall be entitled to convert such Debenture on such
date, in which case such conversion shall be deemed to be effected immediately
prior to the close of business on such date) and at such time the rights of the
Holder of such Debenture as such Debenture Holder shall cease and the person or
persons in whose name or names any certificate or certificates for shares of
Common Stock of the Company shall be issuable upon such conversion shall be
deemed to have become the holder or holders of record of the shares represented
thereby. Except as set forth above and subject to Section 2.03, no payment or
adjustment shall be made upon any conversion on account of any interest accrued
on the Debentures of such series surrendered for conversion or on account of any
dividends on the Common Stock of the Company issued upon
73
80
such conversion. Debentures surrendered for conversion on or after any regular
record date and prior to the next succeeding Interest Payment Date (other than a
Debenture or a portion of a Debenture called for redemption on a Redemption Date
occurring after such regular record date and on or prior to such Interest
Payment Date) shall be accompanied by payment equal to the amount of interest
payable on such Debenture on such Interest Payment Date.
In the case of any Debenture of any series that is converted in part
only, upon such conversion the Company shall execute and the Trustee shall
authenticate and make available for delivery to or on the order of the Holder
thereof, at the expense of the Company, a new Debenture or Debentures of such
series, of authorized denominations, in aggregate principal amount equal to the
unconverted portion of such Debenture.
SECTION 12.3. No Fractional Shares. No fractional share of Common Stock
of the Company shall be issued upon conversions of Debentures of any series. If
more than one Debenture of such series shall be surrendered for conversion at
one time by the same Holder, the number of full shares that shall be issuable
upon conversion shall be computed on the basis of the aggregate principal amount
of the Debentures of such series (or specified portions thereof to the extent
permitted hereby) so surrendered. If, except for the provisions of this Section
12.03, any Holder of a Debenture or Debentures of such series would be entitled
to a fractional share of Common Stock of the Company upon the conversion of such
Debenture or Debentures, or specified portions thereof, the Company shall pay to
such Holder an amount in cash equal to the current market value of such
fractional share computed (a) if such Common Stock is listed or admitted to
unlisted trading privileges on a national securities exchange, on the basis of
the last reported sale price regular way on such exchange on the last trading
day prior to the date of conversion upon which such a sale shall have been
effected, or (b) if such Common Stock is not at the time so listed or admitted
to unlisted trading privileges on a national securities exchange or market, on
the basis of the average of the bid and asked prices of such Common Stock in the
over-the-counter market, on the last trading day prior to the date of
conversion, as reported by the National Quotation Bureau, Incorporated or
similar organization if the National Quotation Bureau, Incorporated is no longer
reporting such information, or if not so available, the fair market price as
determined by the Board of Directors. For purposes of this Section, "trading
day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than
any day on which the Common Stock is not traded on the American Stock Exchange,
or if the Common Stock is not traded on the American Stock Exchange, on the
principal exchange or market on which the Common Stock is traded or quoted.
74
81
SECTION 12.4. Adjustment of Conversion Price. The conversion price of
Debentures of any series that is convertible into Common Stock of the Company
shall be adjusted for any stock dividends, stock splits, reclassification,
combinations or similar transactions in accordance with the terms of the
supplemental indenture or Board Resolutions setting forth the terms of the
Debentures of such series.
Whenever the conversion price is adjusted, the Company shall compute
the adjusted conversion price in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers' Certificate
setting forth the adjusted conversion price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall forthwith
be filed at each office or agency maintained for the purpose of conversion of
Debentures of such series pursuant to Section 9.02 and, if different, with the
Trustee. The Company shall forthwith cause a notice setting forth the adjusted
conversion price to be mailed, first class postage prepaid, to each Holder of
Debentures of such series at its address appearing on the Debenture Register and
to any conversion agent other than the Trustee.
SECTION 12.5. Reservation of Shares of Common Stock. The Company shall
at all times reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock or treasury shares, for the purpose of
effecting the conversion of Debentures, the full number of shares of Common
Stock of the Company then issuable upon the conversion of all outstanding
Debentures of any series that has conversion rights.
SECTION 12.6. Payment of Certain Taxes upon Conversion. The Company
will pay any and all taxes that may be payable in respect of the issue or
delivery of shares of its Common Stock on conversion of Debentures pursuant
hereto. The Company shall not, however, be required to pay any tax that may be
payable in respect of any transfer involved in the issue and delivery of shares
of its Common Stock in a name other than that of the Holder of the Debenture or
Debentures to be converted, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Company the amount of
any such tax, or has established, to the satisfaction of the Company, that such
tax has been paid.
SECTION 12.7. Nonassessability. The Company covenants that all shares
of Common Stock that may be issued upon conversion of Debentures will upon issue
in accordance with the terms hereof be duly and validly issued and fully paid
and nonassessable.
75
82
SECTION 12.8. Effect of Consolidation or Merger on Conversion
Privilege. With respect to Debentures of any series, in case of any
consolidation of the Company with, or merger of the Company into or with any
other Person, or in case of any sale of all or substantially all of the assets
of the Company or any other similar event, the conversion privilege shall be
modified in accordance with the terms of the supplemental indenture or Board
Resolutions setting forth the terms of the Debentures of such series.
SECTION 12.9. Duties of Trustee Regarding Conversion. Neither the
Trustee nor any conversion agent shall at any time be under any duty or
responsibility to any Holder of Debentures of any series that is convertible
into Common Stock to determine whether any facts exist that may require any
adjustment of the conversion price, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture (or whether a supplemental indenture
need be entered into), any resolutions of the Board of Directors or written
instrument executed by one or more officers of the Company provided to be
employed in making the same. Neither the Trustee nor any conversion agent shall
be accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Debentures and neither
the Trustee nor any conversion agent makes any representation with respect
thereto. Neither the Trustee nor any conversion agent shall be responsible for
any failure of the Company to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property upon the surrender
of any Debenture for the purpose of conversion or to comply with any of the
covenants of the Company contained in this Article 12 or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of the Company. All
Debentures delivered for conversion shall be delivered to the Trustee to be
canceled by or at the direction of the Trustee, which shall dispose of the same
as provided in Section 2.08.
SECTION 12.10. Repayment of Certain Funds Upon Conversion. Any funds
that at any time shall have been deposited by the Company or on its behalf with
the Trustee or any other paying agent for the purpose of paying the principal
of, and premium, if any, and interest, if any, on any of the Debentures
(including funds deposited for the sinking fund referred to in Article 2 hereof)
and that shall not be required for such purposes because of the conversion of
such Debentures as provided in this Article 12 shall after such conversion be
repaid to the Company by the Trustee upon the Company's written request, subject
to Section 2.03 hereof.
76
83
ARTICLE 13
SUBORDINATION OF DEBENTURES
SECTION 13.1. Debentures Subordinate to Senior Indebtedness. The
Company covenants and agrees, and each Holder of a Debenture, by the Holder's
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Debentures and the payment of the principal of (and premium, if any) and
interest on each and all of the Debentures are hereby expressly made subordinate
and junior in right of payment to the prior payment in full of all Senior
Indebtedness of the Company, whether outstanding at the date of this Indenture
or thereafter incurred. No provision of this Article shall prevent the
occurrence of any default or Event of Default hereunder.
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc. Upon any
payment by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on account
of the principal (and premium, if any) or interest on the Debentures; and upon
any such dissolution or winding-up or liquidation or reorganization, any payment
by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Debentures or the Trustee would be entitled to receive from the Company, except
for the provisions of this Article, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, or by the Holders of the Debentures or by
the Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to
77
84
or for the holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders of the Debentures or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment that are subordinated
in right of payment to all Senior Indebtedness that may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Debentures are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article 7 shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of the Company for
the purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person that acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article 7.
SECTION 13.3. Prior Payment to Senior Indebtedness Upon Acceleration of
Debentures. In the event that any Debentures are declared due and payable before
their Stated Maturity, then and in such event the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due or to
78
85
become due on or in respect of all Senior Indebtedness or provision shall be
made for such payment in cash, before the Holders of the Debentures are entitled
to receive any payment (including any payment that may be payable by reason of
the payment of any other indebtedness of the Company being subordinated to the
payment of the Debentures) by the Company on account of the principal of (or
premium, if any) or interest on the Debentures or on account of the purchase or
other acquisition of Debentures; provided, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article
11 by delivering and crediting pursuant to Section 11.02 Debentures that have
been acquired (upon redemption or otherwise) prior to such declaration of
acceleration or that have been converted pursuant to Article 12.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Debenture prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 12.02 would be applicable.
SECTION 13.4. No Payment When Senior Indebtedness in Default. In the
event and during the continuation of any default by the Company in the payment
of principal, premium, interest or any other payment due on any Senior
Indebtedness of the Company, as the case may be, beyond any applicable grace
period with respect thereto, or in the event that the maturity of any Senior
Indebtedness of the Company, as the case may be, has been accelerated because of
a default, then, in any such case, no payment shall be made by the Company with
respect to the principal (including redemption and sinking fund payments) of, or
premium, if any, or interest on the Debentures until such default is cured or
waived or ceases to exist or any such acceleration or demand for payment has
been rescinded.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 13.04 such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify
79
86
the Trustee in writing within 90 days of such payment of the amounts then due
and owing on the Senior Indebtedness and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior Indebtedness.
SECTION 13.5. Payment Permitted in Certain Situations. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Debentures shall prevent (a) the Company, at any time except during the pendency
of any dissolution, winding-up, liquidation or reorganization of the Company,
whether voluntary or involuntary or any bankruptcy, insolvency, receivership or
other proceedings of the Company referred to in Section 13.02 or under the
conditions described in Section 13.03 or 13.4, from making payments at any time
of principal of or premium, if any, or interest on the Debentures, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of, or premium, if any, or interest on
the Debentures or the retention of such payment by the Holders, if, at the time
of such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.6. Subrogation to Rights of Holders of Senior Indebtedness .
Subject to the payment in full of all Senior Indebtedness or the provision for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, the rights of the Holders of Debentures
shall be subrogated to the extent of the payments or distributions made to the
holders of such Senior Indebtedness pursuant to the provisions of this Article
13 (equally and ratably with the holders of indebtedness of the Company that by
its express terms is subordinated to indebtedness of the Company to
substantially the same extent as the Debentures are subordinated to the Senior
Indebtedness and is entitled to like rights of subrogation) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debentures shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of Debentures or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to or for the benefit of the holders of Senior Indebtedness by
Holders of Debentures or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of Debentures, be
deemed to be a payment or distribution by the Company to or on account of the
Senior Indebtedness.
80
87
SECTION 13.7. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of Debentures on the one hand and
the holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Debentures is intended to or
shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of Debentures, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of Debentures the principal of (and premium, if any) and interest on the
Debentures as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of Debentures and creditors of the Company, as the case may be, other
than the holders of Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 13.8. Trustee to Effectuate Subordination. Each Holder of a
Debenture by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 13.9. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Debentures, without incurring responsibility to the Holders of Debentures and
without impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of Debentures to the holders of Senior
Indebtedness do any one or more of the following: (a) change the manner, place
or terms of payment or
81
88
extend the time of payment of, or renew or alter, Senior Indebtedness or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (c) release any
Person liable in any manner for the collection of Senior Indebtedness; and (d)
exercise or refrain from exercising any rights against the Company and any other
Person.
SECTION 13.10. Notice to Trustee. The Company shall give prompt written
notice to a Responsible Officer of the Trustee of any fact known to the Company
that would prohibit the making of any payment to or by the Trustee in respect of
the Debentures pursuant to the provisions of this Article. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts that would
prohibit the making of any payment to or by the Trustee in respect of the
Debentures pursuant to the provisions of this Article, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 5.02, shall be entitled in all
respects to assume that no such facts exist; provided, that if the Trustee shall
have not received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of (or premium, if any) or interest on any Debentures, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such date.
Subject to the provisions of Section 5.02, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and
82
89
any other facts pertinent to the rights of such Person under this Article, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 5.02, and the
Holders of Debentures shall be entitled to conclusively rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Debentures, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, as the case may be, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior
Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into the Indenture against the Trustee. Except with respect to Section
13.04, the Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness and shall not be liable to any such holders or creditors
if it shall in good faith pay over or distribute to Holders of Debentures or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 13.13. Rights of Trustee as Holder of Senior Indebtedness,
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness that may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 5.06.
83
90
SECTION 13.14. Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "TRUSTEE" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, that Section 12.13 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 13.15. Certain Conversions Deemed Payment. For the purposes of
this Article only, (a) the issuance and delivery of junior securities (or cash
paid in lieu of fractional shares) upon conversion of Debentures in accordance
with Article 12, or pursuant to the terms set forth in an Officers' Certificate
or established in one or more indentures supplemental hereto in accordance with
Section 2.01, shall not be deemed to constitute a payment or distribution on
account of the principal of or premium or interest on Debentures or on account
of the purchase or other acquisition of Debentures, and (b) the payment,
issuance or delivery of cash, property or securities (other than junior
securities and cash paid in lieu of fractional shares) upon conversion of a
Debenture shall be deemed to constitute payment on account of the principal of
such Debenture. For the purposes of this Section, the term "junior securities"
means (i) shares of any stock of any class of the Company and (ii) securities of
the Company that are subordinated in right of payment to all Senior Indebtedness
that may be outstanding at the time of issuance or delivery of such securities
to substantially the same extent as, or to a greater extent than, the Debentures
are so subordinated as provided in this Article. Nothing contained in this
Article or elsewhere in this Indenture or in the Debentures is intended to or
shall impair, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of Debentures, the right, which is absolute and
unconditional, of the Holder of any Debenture to convert such Debenture in
accordance with Article 12.
84
91
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
FEDERAL-MOGUL CORPORATION
By
----------------------------------------
Name:
Title:
THE BANK OF NEW YORK, AS TRUSTEE
By
----------------------------------------
Name:
Title: