EXHIBIT 4
UNION PACIFIC CORPORATION
and
CHEMICAL BANK,
Trustee
INDENTURE
Dated as of January 5, 1996
Providing for Issuance of Securities in Series
TABLE OF CONTENTS
Recitals of the Company............................................ 1
Agreements of the Parties.......................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions......................................... 1
Act................................................. 2
Affiliate........................................... 2
Authenticating Agent................................ 2
Board of Directors.................................. 3
Board Resolution.................................... 3
Business Day........................................ 3
Commission.......................................... 3
Company............................................. 3
Company Request, Company Order
and Company Consent............................... 3
Corporate Trust Office.............................. 3
Debt................................................ 3
Defaulted Interest.................................. 3
Depositary.......................................... 4
Domestic Subsidiary................................. 4
Event of Default.................................... 4
Global Security.....................................
Holder.............................................. 4
Indenture, this Indenture........................... 4
Independent......................................... 4
Interest............................................ 5
Interest Payment Date............................... 5
Maturity............................................ 5
Mortgage............................................ 5
Officers' Certificate............................... 5
Opinion of Counsel.................................. 5
Original Issue Discount Security.................... 6
Outstanding......................................... 6
Paying Agent........................................ 7
Person.............................................. 7
Place of Payment.................................... 7
Predecessor Securities.............................. 7
Principal Property.................................. 7
Railroad............................................ 8
Redemption Date..................................... 8
Redemption Price.................................... 8
Regular Record Date................................. 8
Repayment Date...................................... 8
Repayment Price..................................... 8
Responsible Officer................................. 8
Restricted Subsidiary............................... 9
Security or Securities.............................. 9
Security Register................................... 9
Security Registrar.................................. 9
Securityholder...................................... 9
Special Record Date................................. 9
Stated Maturity..................................... 9
Subsidiary.......................................... 9
Trust Indenture Act or TIA.......................... 10
Trustee............................................. 10
Unrestricted Subsidiary............................. 10
Vice President...................................... 10
Voting Stock........................................ 10
Section 102. Compliance Certificates and
Opinions.......................................... 10
Section 103. Form of Documents Delivered to
Trustee........................................... 11
Section 104. Acts of Securityholders............................. 12
Section 105. Notices, etc., to Trustee and
Company........................................... 13
Section 106. Notices to Securityholders;
Waiver............................................ 14
Section 107. Conflict with Trust
Indenture Act..................................... 15
Section 108. Effect of Headings and Table of
Contents.......................................... 15
Section 109. Successors and Assigns.............................. 15
Section 110. Separability Clause................................. 15
Section 111. Benefits of Indenture............................... 15
Section 112. Governing Law....................................... 15
Section 113. Counterparts........................................ 15
Section 114. Judgment Currency................................... 15
ARTICLE TWO
Security Forms
Section 201. Forms Generally..................................... 16
Section 202. Forms of Securities................................. 17
Section 203. Form of Trustee's Certificate of
Authentication.................................... 17
ii
Section 204. Securities Issuable in the Form of a
Global Security................................... 18
ARTICLE THREE
The Securities
Section 301. General Title; General Limitations;
Issuable in Series; Terms of
Particular Series................................. 20
Section 302. Denominations....................................... 24
Section 303. Execution, Authentication and
Delivery and Dating............................... 24
Section 304. Temporary Securities................................ 26
Section 305. Registration, Transfer and
Exchange.......................................... 27
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities................................. 28
Section 307. Payment of Interest; Interest
Rights Preserved.................................. 29
Section 308. Persons Deemed Owners............................... 31
Section 309. Cancellation........................................ 31
Section 310. Computation of Interest............................. 32
Section 311. Medium-Term Securities.............................. 32
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture......................................... 32
Section 402. Application of Trust Money.......................... 34
Section 403. Satisfaction, Discharge and
Defeasance of Securities of
any Series........................................ 34
ARTICLE FIVE
Remedies
Section 501. Events of Default................................... 37
Section 502. Acceleration of Maturity;
Rescission and Annulment.......................... 38
iii
Section 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee........................................... 40
Section 504. Trustee May File Proofs of Claim.................... 41
Section 505. Trustee May Enforce Claims Without
Possession of Securities.......................... 42
Section 506. Application of Money Collected...................... 43
Section 507. Limitation on Suits................................. 43
Section 508. Unconditional Right of Security-
holders to Receive Principal,
Premium and Interest.............................. 44
Section 509. Restoration of Rights and
Remedies.......................................... 44
Section 510. Rights and Remedies Cumulative...................... 44
Section 511. Delay or Omission not Waiver........................ 45
Section 512. Control by Securityholders.......................... 45
Section 513. Waiver of Past Defaults............................. 45
Section 514. Undertaking for Costs............................... 46
Section 515. Waiver of Stay or Extension Laws.................... 46
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities................. 47
Section 602. Notice of Defaults.................................. 48
Section 603. Certain Rights of Trustee........................... 49
Section 604. Not Responsible for Recitals or
Issuance of Securities............................ 50
Section 605. May Hold Securities................................. 50
Section 606. Money Held in Trust................................. 50
Section 607. Compensation and Reimbursement...................... 51
Section 608. Disqualification; Conflicting
Interests......................................... 51
Section 609. Corporate Trustee Required;
Eligibility....................................... 53
Section 610. Resignation and Removal; Appointment
of Successor...................................... 53
Section 611. Acceptance of Appointment by
Successor......................................... 55
Section 612. Merger, Conversion, Consolidation or
Succession to Business............................. 56
Section 613. Preferential Collection of Claims
Against Company.................................... 56
Section 614. Appointment of Authenticating Agent.................. 61
iv
ARTICLE SEVEN
Securityholders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names
and Addresses of Security-
holders........................................... 64
Section 702. Preservation of Information;
Communications to
Securityholders................................... 64
Section 703. Reports by Trustee.................................. 66
Section 704. Reports by Company.................................. 68
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only
on Certain Terms.................................. 68
Section 802. Successor Corporation
Substituted....................................... 69
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Securityholders........................ 70
Section 902. Supplemental Indentures with
Consent of Securityholders........................ 71
Section 903. Execution of Supplemental
Indentures........................................ 72
Section 904. Effect of Supplemental Indentures................... 73
Section 905. Conformity with Trust Indenture
Act............................................... 73
Section 906. Reference in Securities to
Supplemental Indentures........................... 73
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest.......................................... 73
Section 1002. Maintenance of Office or Agency..................... 73
v
Section 1003. Money for Security Payments to Be
Held in Trust..................................... 74
Section 1004. Statement as to Compliance.......................... 76
Section 1005. Corporate Existence................................. 76
Section 1006. Limitation on Liens................................. 76
Section 1007. Limitation on Transfers of Principal
Properties to Unrestricted
Subsidiaries...................................... 79
Section 1008. Waiver of Certain Covenants......................... 79
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article............................ 79
Section 1102. Election to Redeem; Notice
to Trustee........................................ 79
Section 1103. Selection by Trustee of Securities
to Be Redeemed.................................... 80
Section 1104. Notice of Redemption................................ 81
Section 1105. Deposit of Redemption Price......................... 81
Section 1106. Securities Payable on
Redemption Date................................... 82
Section 1107. Securities Redeemed in Part......................... 82
Section 1108. Provisions with Respect to any
Sinking Funds..................................... 82
vi
THIS INDENTURE between UNION PACIFIC CORPORATION,
a Utah corporation (hereinafter called the "Company")
having its principal office at Eighth and ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and CHEMICAL
BANK, a New York corporation, trustee (hereinafter
called the "Trustee"), is made and entered into as of
this 5th day of January, 1996.
Recitals of the Company
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance of its debentures,
notes, bonds or other evidences of indebtedness, to be issued in one
or more fully registered series.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
Agreements of the Parties
To set forth or to provide for the establishment of the
terms and conditions upon which the Securities are and are to be
authenticated, issued and delivered, and in consideration of the
premises and the purchase of Securities by the Holders thereof, it is
mutually covenanted and agreed as follows, for the equal and
proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this Indenture
and of any indenture supplemental hereto, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act or by Commission rule under the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such
computation;
(4) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this
instrument as originally executed. 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
(5) "including" and words of similar import shall be deemed
to be followed by "without limitation".
Certain terms, used principally in Article Six, are defined
in that Article.
"Act", when used with respect to any Securityholder, has
the meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee to authenticate Securities under Section 614.
"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" means each day which is neither a Saturday,
Sunday or other day on which banking institutions in the pertinent
Place or Places of Payment are authorized or required by law or
executive order to be closed.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor corporation shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor
corporation.
"Company Request", "Company Order" and "Company Consent"
mean, respectively, a written request, order or consent signed in the
name of the Company by its Chairman of the Board, President or a Vice
President, and by its Treasurer, an Assistant Treasurer, Controller,
an Assistant Controller, Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York at which at any particular time its
corporate trust business shall be principally administered, which
office at the date hereof is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention: Corporate Trust Administration.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section
307.
"Depositary" means, unless otherwise specified by the
Company pursuant to either Section 204 or 301, with respect to
Securities of any series issuable or issued as a Global Security, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation.
"Domestic Subsidiary" means a Subsidiary which is
incorporated or conducting its principal operations within the United
States of America or any State thereof or off the coast of the United
States of America but within an area over which the United States of
America or any State thereof has jurisdiction.
"Event of Default" has the meaning specified in Article
Five.
"Global Security" means with respect to any series of
Securities issued hereunder, a Security which is executed by the
Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture and an indenture supplemental hereto,
if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and
which shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities
of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date,
date or dates on which principal is due, and interest rate or method
of determining interest.
"Holder", when used with respect to any Security, means a
Securityholder.
"Indenture" or "this 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 particular series of Securities established as contemplated
by Section 301.
"Independent", when used with respect to any specified
Person, means such a Person who (1) is in fact independent, (2) does
not have any direct financial interest
or any material indirect financial interest in the Company or in any
other obligor upon the Securities or in any Affiliate of the Company
or of such other obligor, and (3) is not connected with the Company or
such other obligor or any Affiliate of the Company or of such other
obligor, as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions. Whenever it
is herein provided that any Independent Person's opinion or
certificate shall be furnished to the Trustee, such Person shall be
appointed by a Company Order and approved by the Trustee in the
exercise of reasonable care, and such opinion or certificate shall
state that the signer has read this definition and that the signer is
Independent within the meaning hereof.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
series of Securities, means the Stated Maturity of any installment of
interest on those Securities.
"Maturity", when used with respect to any Securities, means
the date on which the principal of any such Security becomes due and
payable as therein or herein provided, whether on a Repayment Date, at
the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Mortgage" means any mortgage, pledge, lien, encumbrance,
charge or security interest of any kind.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee. Wherever this Indenture requires that an
Officers' Certificate be signed also by an engineer or an accountant
or other expert, such engineer, accountant or other expert (except as
otherwise expressly provided in this Indenture) may be in the employ
of the Company, and shall be acceptable to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be an
employee of or of counsel to the
Company. Such counsel shall be acceptable to the Trustee, whose
acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means (i) any Security
which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the Maturity
thereof, and (ii) any other Security deemed an Original Issue Discount
Security for United States Federal income tax purposes.
"Outstanding", when used with respect to Securities or
Securities of any series, means, as of the date of determination, all
such Securities theretofore authenticated and delivered under this
Indenture, except:
(i) such Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent in trust for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) such Securities in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant
to this Indenture, or which shall have been paid pursuant to the
terms of Section 306 (except with respect to any such Security as
to which proof satisfactory to the Trustee is presented that such
Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount
of such Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of any Original Issue Discount Security 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 the taking of such
action upon a declaration of acceleration of the Maturity thereof and
(ii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded
and deemed not to be Outstanding. In determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer assigned to the corporate trust department
of the Trustee knows to be owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other
obligor shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right to
act as owner with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment" means with respect to any series of
Securities issued hereunder the city or political subdivision so
designated with respect to the series of Securities in question in
accordance with the provisions of Section 301.
"Predecessor Securities" of any particular Security means
every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen
Security.
"Principal Property" means (i) any property owned or leased
by the Company or any Subsidiary, or any interest of the Company or
any Subsidiary in property, located within the United States of
America or any State thereof (including property located off the coast
of the United States of America held pursuant to lease from any
Federal, State or other governmental body) which is considered by the
Company to be capable of producing oil or gas or minerals in
commercial quantities and (ii) any refinery, smelter or
processing or manufacturing plant owned or leased by the Company or
any Subsidiary and located within the United States of America or any
State thereof, except (a) facilities related thereto employed in
transportation, distribution or marketing or (b) any refinery, smelter
or processing or manufacturing plant, or portion thereof, which in the
opinion of the Board of Directors is not a principal plant in relation
to the activities of the Company and its Restricted Subsidiaries as a
whole.
"Railroad" means Union Pacific Railroad Company, a Utah
corporation, and Missouri Pacific Railroad Company, a Delaware
corporation, and their respective successors and assigns.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price specified in the Security at which it
is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Security on any Interest Payment Date means the date specified in such
Security as the Regular Record Date.
"Repayment Date", when used with respect to any Security to
be repaid, means the date fixed for such repayment pursuant to such
Security.
"Repayment Price", when used with respect to any Security to
be repaid, means the price at which it is to be repaid pursuant to
such Security.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or vice-chairman of the board of
directors, the chairman or vice-chairman of the executive committee of
the board of directors, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any senior trust
officer or trust officer, the controller and any assistant controller
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 his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means any Subsidiary which owns or
leases (as lessor or lessee) a Principal Property but does not include
(i) the Railroad or any other Subsidiary which is principally a common
carrier by rail or truck engaged in interstate or intrastate commerce
and is subject to regulation of such activities by any Federal, State
or other governmental body, or (ii) any Subsidiary the principal
business of which is leasing machinery, equipment, vehicles or other
properties none of which is a Principal Property, or financing
accounts receivable, or engaging in ownership and development of any
real property which is not a Principal Property.
"Security" or "Securities" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of
indebtedness, as the case may be, of any series authenticated and
delivered from time to time under this Indenture.
"Security Register" shall have the meaning specified in
Section 305.
"Security Registrar" means the Person who keeps the Security
Register specified in Section 305.
"Securityholder" means a Person in whose name a Security is
registered in the Security Register.
"Special Record Date" for the payment of any Defaulted
Interest (as defined in Section 307) means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the
date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" of any specified corporation means any
corporation at least a majority of whose outstanding Voting Stock
shall at the time be owned, directly or indirectly, by the specified
corporation or by one or more of its Subsidiaries, or both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, as in
force at the date as of which this instrument was executed except as
provided in Section 905.
"Trustee" means the Person named as the Trustee in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean and include each Person who is
then a Trustee hereunder. If at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Unrestricted Subsidiary" means any Subsidiary which is not
a Restricted Subsidiary.
"Vice President" when used with respect to the Company or
the Trustee means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president", including, without limitation, an assistant vice
president.
"Voting Stock", as applied to the stock of any corporation,
means stock of any class or classes (however designated) having by the
terms thereof ordinary voting power to elect a majority of the members
of the board of directors (or other governing body) of such
corporation other than stock having such power only by reason of the
happening of a contingency.
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall
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 with respect to compliance with
a condition or covenant provided for in this Indenture (except for the
written statement required by Section 1004) shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. 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 the
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
certif- icate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in the
possession of the
Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations
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 104. Acts of Securityholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by
Securityholders or Securityholders of any series may be embodied in
and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Company. If any Securities are denominated
in coin or currency other than that of the United States, then for the
purposes of determining whether the Holders of the requisite principal
amount of Securities have taken any action as herein described, the
principal amount of such Securities shall be deemed to be that amount
of United States dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange into United States
dollars for the currency in which such Securities are denominated (as
evidenced to the Trustee by an Officers' Certificate) as of the date
the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in the immediately
preceding sentence. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) 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
to such execution or by the certificate of any notary public or other
officer authorized
by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by an officer of a
corporation or a member of a partnership, on behalf of such
corporation or partnership, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the
person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, by Board Resolution, fix
in advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other action, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may
be given before or after the record date, but only the Holders of
record at the close of business on the record date shall be deemed to
be Holders for the purposes of determining whether Holders of the
requisite proportion of Securities Outstanding have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other action, and for that purpose the
Securities Outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the
Holders on the record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall
bind the Holder of every Security issued upon the transfer thereof or
in exchange therefor or in lieu thereof, in respect of anything done
or suffered to be done by the Trustee or the Company in reliance
thereon whether or not notation of such action is made upon such
Security.
Section 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction,
notice, consent, waiver or Act of Securityholders or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or by any Securityholder
shall be sufficient for every purpose hereunder (except as
provided in Section 501(4) or, in the case of a request for
repayment, as specified in the Security carrying the right to
repayment) 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 instrument or at
any other address previously furnished in writing to the Trustee
by the Company.
Section 106. Notices to Securityholders; Waiver. Where this
Indenture or any Security provides for notice to Securityholders of
any event, such notice shall be sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and
mailed, first-class postage prepaid, to each Securityholder affected
by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where
notice to Securityholders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Securityholder shall affect the sufficiency of such notice
with respect to other Securityholders. Where this Indenture or any
Security provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Securityholders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or otherwise, it shall be
impractical to mail notice of any event to any Securityholder when
such notice is required to be given pursuant to any provision of this
Indenture, then
any method of notification as shall be satisfactory to the Trustee and
the Company shall be deemed to be a sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with the duties
imposed by any of Sections 310 to 317, inclusive, of the Trust
Indenture Act through the operation of Section 318(c) thereof, such
imposed duties shall control.
Section 108. 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 109. 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 110. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 111. Benefits of Indenture. Nothing in this
Indenture or in any Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder,
any Authenticating Agent or Paying Agent, the Security Registrar and
the Holders of Securities (or such of them as may be affected
thereby), any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law. This Indenture shall be
construed in accordance with and governed by the laws of the State of
New York.
Section 113. Counterparts. 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.
Section 114. Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due
in respect of the principal of, or premium or interest, if any, on the
Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate
of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in the City of New York
the Required Currency with the Judgment Currency on the New York
Banking Day (as defined below) preceding that on which final
unappealable judgment is given and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)),
in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in the City of New York
or a day on which banking institutions in the City of New York are
authorized or required by law or executive order to close.
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities shall have such
appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with
applicable laws or regulations or with the rules of any securities
exchange, or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of
the Securities. Any portion of the text of any Security may be set
forth on the reverse
thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by
their execution of such Securities, subject, with respect to the
Securities of any series, to the rules of any securities exchange on
which such Securities are listed.
Section 202. Forms of Securities. Each Security shall be in
one of the forms approved from time to time by or pursuant to a Board
Resolution, or established in one or more indentures supplemental
hereto. Prior to the delivery of a Security to the Trustee for
authentication in any form approved by or pursuant to a Board
Resolution, the Company shall deliver to the Trustee the Board
Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true
and correct copy of the form of Security which has been approved
thereby or, if a Board Resolution authorizes a specific officer or
officers to approve a form of Security, a certificate of such officer
or officers approving the form of Security attached thereto. Any form
of Security approved by or pursuant to a Board Resolution must be
acceptable as to form to the Trustee, such acceptance to be evidenced
by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and
delivered to the Company.
Section 203. Form of Trustee's Certificate of
Authentication. The form of Trustee's Certificate of Authentication
for any Security issued pursuant to this Indenture shall be
substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
CHEMICAL BANK,
as Trustee,
By:________________________
Authorized Officer
Section 204. Securities Issuable in the Form of a Global
Security. (a) If the Company shall establish pursuant to Sections 202
and 301 that the Securities of a particular series are to be issued in
whole or in part in the form of one or more Global Securities, then
the Company shall execute and the Trustee or its agent shall, in
accordance with Section 303 and the Company Request delivered to the
Trustee or its agent thereunder, authenticate and deliver, such Global
Security or Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such
Global Security or Securities, or such portion thereof as the Company
shall specify in a Company Request, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary's instruction and (iv) shall
bear a legend substantially to the following effect: "Unless and until
it is exchanged in whole or in part for the individual Securities
represented hereby, this Global Security may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204
or of Section 305, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not in
part
and in the manner provided in Section 305, only to a nominee of the
Depositary for such Global Security, or to the Depositary, or a
successor Depositary for such Global Security selected or approved by
the Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time the Depositary
for the Securities for such series ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, the Company shall appoint a
successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company will execute, and the
Trustee or its agent, upon receipt of a Company Request for the
authentication and delivery of individual Securities of such series in
exchange for such Global Security, will authenticate and deliver,
individual Securities of such series of like tenor and terms in an
aggregate principal amount equal to the principal amount of the Global
Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof issued
or issuable in the form of one or more Global Securities shall no
longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a
Company Request for the authentication and delivery of individual
Securities of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual Securities
of such series of like tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such
Global Security or Securities representing such series or portion
thereof in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 202
and 301 with respect to Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may surrender
such Global Security in exchange in whole or in part for individual
Securities of such series of like tenor and terms in definitive form
on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee or
its agent shall authenticate and deliver, without service charge, (1)
to each Person specified by such Depositary a new Security or
Securities of the same series of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and (2) to such Depositary a new
Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to the Holders thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee or its
agent will authenticate and deliver individual Securities in
definitive registered form in authorized denominations. Upon the
exchange of the entire principal amount of a Global Security for
individual Securities, such Global Security shall be cancelled by the
Trustee or its agent. Except as provided in the preceding paragraph,
Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or the Security Registrar. The Trustee or
the Security Registrar shall deliver such Securities to the Persons in
whose names such Securities are so registered.
ARTICLE THREE
The Securities
Section 301. General Title; General Limitations; Issuable in
Series; Terms of Particular Series. The aggregate principal amount of
Securities which may be authenticated and delivered and Outstanding
under this Indenture is not limited.
The Securities may be issued in one or more series up to an
aggregate principal amount of Securities as from time to time may be
authorized by the Board of Directors. All Securities of each series
under this Indenture shall in all respects be equally and ratably
entitled to the benefits
hereof with respect to such series without preference, priority or
distinction on account of the actual time of the authentication and
delivery or Stated Maturity of the Securities of such series.
Each series of Securities shall be created either by or
pursuant to a Board Resolution or by or pursuant to an indenture
supplemental hereto. The Securities of each such series may bear such
date or dates, be payable at such place or places, have such Stated
Maturity or Maturities, be issuable at such premium over or discount
from their face value, bear interest at such rate or rates (which may
be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the
Holders of Securities registered as such on such Regular Record Dates,
or may bear no interest, and may be redeemable or repayable at such
Redemption Price or Prices or Repayment Price or Prices, as the case
may be, whether at the option of the Holder or otherwise, and upon
such terms, all as shall be provided for in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating
that series. There may also be established in or pursuant to a Board
Resolution or in or pursuant to a supplemental indenture prior to the
issuance of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that
series, at the option of the Holders thereof, for or into new
Securities of a different series or other securities or other
property, including shares of capital stock of the Company or any
subsidiary of the Company or securities directly or indirectly
convertible into or exchangeable for any such shares;
(2) a sinking or purchase fund or other analogous
obligation;
(3) if other than U.S. dollars, the currency or currencies
or units based on or related to currencies (including European
Currency Units) in which the Securities of such series shall be
denominated and in which payments of principal of, and any
premium and interest on, such Securities shall or may be payable;
(4) if the principal of (and premium, if any) or interest,
if any, on the Securities of such series are to be payable, at
the election of the Company or a holder thereof, in a currency or
currencies or units based on or related to currencies (including
European Currency Units) other than that in which the Securities
are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(5) if the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of such series may
be determined with reference to an index based on (i) a currency
or currencies or units based on or related to currencies
(including European Currency Units) other than that in which the
Securities are stated to be payable, (ii) changes in the price of
one or more other securities or groups or indexes of securities
or (iii) changes in the prices of one or more commodities or
groups or indexes of commodities, or any combination of the
foregoing, the manner in which such amounts shall be determined;
(6) if the aggregate principal amount of the Securities of
that series is to be limited, such limitations;
(7) the exchange of Securities of that series, at the option
of the Holders thereof, for other Securities of the same series
of the same aggregate principal amount of a different authorized
kind or different authorized denomination or denominations, or
both;
(8) the appointment by the Trustee of an Authenticating
Agent in one or more places other than the location of the office
of the Trustee with power to act on behalf of the Trustee and
subject to its direction in the authentication and delivery of
the Securities of any one or more series in connection with such
transactions as shall be specified in the provisions of this
Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series;
(9) the portion of the principal amount of Securities of the
series, if other than the total principal amount thereof, which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or provable in bankruptcy
pursuant to Section 504;
(10) any Event of Default with respect to the Securities of
such series, if not set forth herein and
any addition, deletions or other changes to the Events of Default
set forth herein that shall be applicable to the Securities of such
series (including a provision making any Event of Default set forth
herein inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the Securities
of such series and any additions, deletions or other changes to
the provisions of Article Ten or any definitions relating to such
Article that shall be applicable to the Securities of such series
(including a provision making any Section of such Article
inapplicable to the Securities of such series);
(12) the applicability of Section 403 of this Indenture to
the Securities of such series;
(13) if the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Global
Securities, the terms and conditions, if any, upon which such
Global Security or Global Securities may be exchanged in whole or
in part for other individual Securities; and the Depositary for
such Global Security or Global Securities (if other than the
Depositary specified in Section 101 hereof);
(14) the subordination of the Securities of such series to
any other indebtedness of the Company, including without
limitation, the Securities of any other series; and
(15) any other terms of the series, which shall not be
inconsistent with the provisions of this Indenture,
all upon such terms as may be determined in or pursuant to a Board
Resolution or in or pursuant to a supplemental indenture with respect
to such series. All Securities of the same series shall be
substantially identical in tenor and effect, except as to
denomination.
The form of the Securities of each series shall be
established pursuant to the provisions of this Indenture in or
pursuant to the Board Resolution or in or pursuant to the supplemental
indenture creating such series. The Securities of each series shall be
distinguished from the Securities of each other series in such manner,
reasonably satisfactory to the Trustee, as the Board of Directors may
determine.
Unless otherwise provided with respect to Securities of a
particular series, the Securities of any series may only be issuable
in registered form, without coupons.
Any terms or provisions in respect of the Securities of any
series issued under this Indenture may be determined pursuant to this
Section by providing in a Board Resolution or supplemental indenture
for the method by which such terms or provisions shall be determined.
Section 302. Denominations. The Securities of each series
shall be issuable in such denominations and currency as shall be
provided in the provisions of this Indenture or in or pursuant to the
Board Resolution or the supplemental indenture creating such series.
In the absence of any such provisions with respect to the Securities
of any series, the Securities of that series shall be issuable only in
fully registered form in denominations of $1,000 and any integral
multiple thereof.
Section 303. Execution, Authentication and Delivery and
Dating. The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President, one of its Vice Presidents
or its Treasurer under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at the
date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication; and the
Trustee shall, upon Company Order, authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee
shall be entitled to receive, in addition to any Officers' Certificate
and Opinion of Counsel required to be furnished to the Trustee
pursuant to Section 102, and the
Board Resolution and any certificate relating to the issuance of the
series of Securities required to be furnished pursuant to Section 202,
an Opinion of Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such
Securities;
(2) the form and terms (or in connection with the issuance
of medium-term Securities under Section 311, the manner of
determining the terms) of such Securities have been established
in conformity with the provisions of this Indenture;
(3) all laws and requirements with respect to the execution
and delivery by the Company of such Securities have been complied
with, the Company has the corporate power to issue such
Securities and such Securities have been duly authorized and
delivered by the Company and, assuming due authentication and
delivery by the Trustee, constitute legal, valid and binding
obligations of the Company enforceable in accordance with their
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
and legal principles affecting creditors' rights generally from
time to time in effect and to general equitable principles,
whether applied in an action at law or in equity) and entitled to
the benefits of this Indenture, equally and ratably with all
other Securities, if any, of such series Outstanding;
(4) the Indenture is qualified under the Trust Indenture
Act; and
(5) such other matters as the Trustee may reasonably
request;
and, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, also stating
that all laws and requirements with respect to the form and execution
by the Company of the supplemental indenture with respect to that
series of Securities have been complied with, the Company has cor-
porate power to execute and deliver any such supplemental indenture
and has taken all necessary corporate action for those purposes and
any such supplemental indenture has been
executed and delivered and constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws and legal
principles affecting creditors' rights generally from time to time in
effect and to general equitable principles, whether applied in an
action at law or in equity).
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the Trustee's
own rights, duties or immunities under the Securities and this
Indenture.
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Section 304. Temporary Securities. Pending the preparation
of definitive Securities of any series, the Company may execute, and,
upon receipt of the documents required by Section 303, together with a
Company Order, the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment, without charge to the
Holder; and upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of such series of authorized denominations
and of like tenor and terms. Until so exchanged the temporary
Securities of such series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such
series.
Section 305. Registration, Transfer and Exchange. The
Company shall keep or cause to be kept a register (herein sometimes
referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities, or of Securities of a particular
series, and for transfers of Securities or of Securities of such
series. Any such register shall be in written form or in any other
form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such
register or registers shall be available for inspection by the Trustee
at the office or agency to be maintained by the Company as provided in
Section 1002.
Subject to Section 204, upon surrender for transfer of any
Security of any series at the office or agency of the Company in a
Place of Payment, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of such series of any
authorized denominations, of a like aggregate principal amount and
Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder,
Securities of any series may be exchanged for other Securities of such
series of any authorized denominations, of a like aggregate principal
amount and Stated Maturity and of like tenor and terms, upon surrender
of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Securities which the Securityholder making the exchange is entitled to
receive.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise provided in the Security to be transferred
or exchanged, no service charge shall be made on any Securityholder
for any transfer or exchange of Securities, but the Company may
(unless otherwise provided in such Security) require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Securities,
other than exchanges pursuant to Section 304 or 906 not involving any
transfer.
The Company shall not be required (i) to issue, transfer or
exchange any Security of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice
of redemption of Securities of such series selected for redemption
under Section 1103 and ending at the close of business on the date of
such mailing, or (ii) to transfer or exchange any Security so selected
for redemption in whole or in part, except for the portion of such
Security not so selected for redemption.
None of the Company, the Trustee, any agent of the Trustee,
any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company initially appoints the Trustee to act as
Security Registrar for the Securities on its behalf. The Company may
at any time and from time to time authorize any Person to act as
Security Registrar in place of the Trustee with respect to any series
of Securities issued under this Indenture.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities. If (i) any mutilated Security is surrendered to the
Trustee, or the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and
(ii) there is delivered to the Company and the Trustee such security
or indemnity as
may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security, a new Security of like tenor, series, Stated Maturity
and principal amount, bearing a number not contemporaneously
Outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of the
same series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided with respect to such Security pursuant to
Section 301, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on
the relevant Regular Record Date by virtue of his having been such
Holder; and, except as hereinafter provided, such Defaulted Interest
may be paid by the Company, at its election in each case, as provided
in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Securities (or
their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such
Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 nor less than 10 days
prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to the Holder of each
such Security at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
If any installment of interest the Stated Maturity of which
is on or prior to the Redemption Date for any Security called for
redemption pursuant to Article Eleven is not paid or duly provided for
on or prior to the Redemption Date in accordance with the foregoing
provisions of this Section, such interest shall be payable as part of
the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
Section 308. Persons Deemed Owners. The Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered in the Security Register as the
owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Section 307)
interest on, such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
Section 309. Cancellation. All Securities surrendered for
payment, redemption, transfer, conversion or exchange or credit
against a sinking fund shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Security shall be
authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section, except as expressly permitted by this
Indenture. The Trustee shall dispose of all cancelled Securities in
accordance with its customary procedures and shall deliver a
certificate of such disposition to the Company.
Section 310. Computation of Interest. Unless otherwise
provided as contemplated in Section 301, interest on the Securities
shall be calculated on the basis of a 360-day year of twelve 30-day
months.
Section 311. Medium-term Securities. Notwithstanding any
contrary provision herein, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary for the
Company to deliver to the Trustee an Officers' Certificate, Board
Resolution, supplemental indenture, Opinion of Counsel or Company
Request otherwise required pursuant to Sections 202, 301 and 303 at or
prior to the time of authentication of each Security of such series if
such documents are delivered to the Trustee or its agent at or prior
to the authentication upon original issuance of the first Security of
such series to be issued; provided that any subsequent request by the
Company to the Trustee to authenticate Securities of such series upon
original issuance shall constitute a representation and warranty by
the Company that as of the date of such request, the statements made
in the Officers' Certificate delivered pursuant to Section 102 shall
be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that
Securities which are the subject thereof will be authenticated and
delivered by the Trustee or its agent on original issue from time to
time upon the telephonic or written order of persons designated in
such Officers' Certificate, Board Resolution or supplemental indenture
(any such telephonic instructions to be confirmed promptly in writing
by such persons) and that such persons are authorized to determine,
consistent with such Officers' Certificate, supplemental indenture or
Board Resolution, such terms and conditions of said Securities as are
specified in such Officers' Certificate, supplemental indenture or
Board Resolution.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of conversion,
transfer or exchange
of Securities of such series expressly provided for herein or in the
form of Security for such series), and the Trustee, on demand of and
at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such
series, when
(1) either
(A) all Securities of that series theretofore
authenticated and delivered (other than (i) Securities of
such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306,
and (ii) Securities of such series for whose payment money
has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee cancelled
or for cancellation; or
(B) all such Securities of that series not theretofore
delivered to the Trustee cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee cancelled or for cancellation, for principal (and premium,
if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable), or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Securities
of such series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to
the Trustee with respect to that series under Section 607 shall
survive and the obligations of the Trustee under Sections 402 and
1003 shall survive.
Section 402. Application of Trust Money. All money and
obligations deposited with the Trustee pursuant to Section 401 or
Section 403 and all money received by the Trustee in respect of such
obligations shall be held in trust and applied by it, in accordance
with the provisions of the series of Securities in respect of which it
was deposited and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for whose
payment such money and obligations have been deposited with or
received by the Trustee; but such money and obligations need not be
segregated from other funds except to the extent required by law.
Section 403. Satisfaction, Discharge and Defeasance of
Securities of any Series. If this Section 403 is specified, as
contemplated by Section 301, to be applicable to Securities of any
series, the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of any such series at the
time outstanding, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction, discharge
and defeasance of such indebtedness, when
(1) either
(A) with respect to all Securities of such series at
the time outstanding,
(i) the Company has deposited or caused to be
deposited with the Trustee as trust funds in trust for
such purpose an amount sufficient, together with any
obligations
deposited pursuant to clause (ii) below, to pay and
discharge the entire indebtedness on all such
Securities for principal (and premium, if any) and
interest, on the days on which such principal (and
premium, if any) or interest, as the case may be, is
due and payable in accordance with the terms of this
Indenture and such Securities, to the date of maturity
or date of redemption thereof as contemplated by the
penultimate paragraph of this Section 403, as the case
may be; or
(ii) the Company has deposited or caused to be
deposited with the Trustee as obligations in trust for
such purpose such amount of direct obligations of, or
obligations the principal of and interest on which are
fully guaranteed by, the government which issued the
currency in which such Securities are denominated
(other than such obligations as are redeemable at the
option of the issuer thereof) as will, together with
the income to accrue thereon without consideration of
any reinvestment thereof, be sufficient, in the written
opinion of a firm of nationally recognized independent
public accountants (which may be the Company's
auditors) delivered to the Trustee, together with any
funds deposited pursuant to clause (i) above, to pay
and discharge the entire indebtedness on all such
Securities for principal (and premium, if any) and
interest, on the days on which such principal (and
premium, if any) or interest, as the case may be, is
due and payable in accordance with the terms of this
Indenture and such Securities, to the date of maturity
or date of redemption thereof as contemplated by the
penultimate paragraph of this Section 403, as the case
may be; or
(B) the Company has properly fulfilled such other means
of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Securities of such series at the time
Outstanding;
(3) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by
which it is bound;
(4) no Event of Default or event which, after notice or
lapse of time or both, would become an Event of Default shall
have occurred and be continuing on the date of such deposit; and
(5) 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, discharge and defeasance of the entire indebtedness
on all Securities of any such series at the time Outstanding have
been complied with.
Any deposits with the Trustee referred to in Section
403(1)(A) above shall be irrevocable. If any Securities of such series
at the time outstanding 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 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 the satisfaction of the conditions set forth in this
Section 403 with respect to all the Securities of any series at the
time Outstanding, the terms and conditions of such series, including
the terms and conditions with respect thereto set forth in this
Indenture (except as to any surviving rights of conversion, transfer
or exchange of Securities of such series expressly provided for herein
or in the form of Security for such series), 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
Securities of such series which 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 satisfaction of the conditions set forth
in this Section 403 with respect to all Securities of any series at
the time Outstanding, the obligations of the Company to the Trustee
with respect to that series under Section 607 and the obligations of
the Trustee with respect to that series under Section 402 and 1003
shall survive.
ARTICLE FIVE
Remedies
Section 501. Events of Default. "Event of Default", wherever
used herein, means with respect to any series of Securities any one of
the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or
governmental body), unless such event is either inapplicable to a
particular series or it is specifically deleted or modified in the
supplemental indenture creating such series of Securities or in the
form of Security for such series:
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund
or analogous obligation when the same becomes due by the terms of
the Securities of such series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture in respect of the
Securities of such series (other than a covenant or warranty in
respect of the Securities of such series a default in the
performance of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and
warranties in the Indenture which are not expressly stated to be
for the benefit of a particular series of Securities being deemed
in respect of the Securities of all series for this purpose, 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 principal amount of the
Outstanding Securities 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
(5) the entry of an order for relief against the Company
under the Federal Bankruptcy Code by a court having jurisdiction
in the premises or a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent under any other applicable Federal or State law, or the
entry of a decree or order approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under the Federal Bankruptcy Code or
any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(6) the consent by the Company to the institution of
bankruptcy or insolvency proceedings against it, or the filing by
it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other applicable
Federal or State law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other 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
the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in
the form of Security for such series.
Section 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default described in paragraph (1), (2),
(3), (4) or (7) (if the Event of Default under paragraph (4) or (7) is
with respect to less than all series of Securities then Outstanding)
of Section 501 occurs and is continuing with respect to any series,
then and in each and every such case, unless the principal of all the
Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding
hereunder (each such series acting as a separate class), by notice in
writing to the Company (and to the Trustee if given by Holders), may
declare the principal amount (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the
Securities of such series then Outstanding and all accrued interest
thereon to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Securities of such
series contained to the contrary notwithstanding. If an Event of
Default described in paragraph (4) or (7) (if the Event of Default
under paragraph (4) or (7) is with respect to all series of Securities
then Outstanding), (5) or (6) of Section 501 occurs and is continuing,
then and in each and every such case, unless the principal of all the
Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities then Outstanding hereunder (treated as
one class), by notice in writing to the Company (and to the Trustee if
given by Holders), may declare the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms thereof) of all the
Securities then Outstanding and all accrued interest thereon to be due
and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary
notwithstanding.
At any time after such a declaration of acceleration has
been made with respect to the Securities of any series and before a
judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on the
Securities of such series,
(B) the principal of (and premium, if any, on) any
Securities of such series which have become due otherwise
than by such declaration of acceleration, and interest
thereon at the rate or rates prescribed therefor by the
terms of the Securities of such series, to the extent that
payment of such interest is lawful,
(C) interest upon overdue installments of interest at
the rate or rates prescribed therefor by the terms of the
Securities of such series to the extent that payment of such
interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all
other amounts due the Trustee under Section 607; and
(2) all Events of Default with respect to such series of
Securities, other than the nonpayment of the principal of the
Securities of such series which have become due solely by such
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes
due and payable, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or
purchase fund or analogous obligation when the same becomes due
by the terms of the Securities of any series,
and any such default continues for any period of grace provided with
respect to the Securities of such series, the
Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holder of any such Security (or the Holders of any such series
in the case of Clause (3) above), the whole amount then due and
payable on any such Security (or on the Securities of any such series
in the case of Clause (3) above) for principal (and premium, if any)
and interest, with interest, to the extent that payment of such
interest shall be legally enforceable, upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at such
rate or rates as may be prescribed therefor by the terms of any such
Security (or of Securities of any such series in the case of Clause
(3) above); and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 607.
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, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any
other obligor upon the Securities of such series and collect the money
adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed or
by declaration or
otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such
proceedings or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary and 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 all other amounts due the
Trustee under Section 607) and of the Securityholders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby
authorized by each Securityholder to make such payment to the Trustee
and in the event that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee any
amount due to 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 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession
of Securities. All rights of action and claims under this Indenture or
the Securities of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities 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 agent and
counsel, be for the ratable benefit of the Holders of the Securities
of the series in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money
collected by the Trustee with respect to a series of Securities
pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if
any) or interest, upon presentation of the Securities of such series
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 607.
SECOND: To the payment of the amounts then due and unpaid
upon the Securities of that series for principal (and premium, if any)
and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities
for principal (and premium, if any) and interest, respectively.
Section 507. Limitation on Suits. No Holder of any Security
of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to
Securities of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of such series;
it being understood and intended that no one or more Holders of
Securities of such series shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of
Securities of such series, or to obtain or to seek to obtain priority
or preference over any other such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities
of such series.
Section 508. Unconditional Right of Securityholders to
Receive Principal, Premium and Interest. Notwithstanding any other
provisions in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of
the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may
be) and to institute suit for the enforcement of any such payment, and
such right shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If the
Trustee or any Securityholder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, then and in every such case
the Company, the Trustee and the Securityholders shall, subject to any
determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all
rights and remedies of the Trustee and the Securityholders shall
continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security to exercise
any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Securityholders, as the case may be.
Section 512. Control by Securityholders. The Holders of a
majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to
the Securities of such series, provided that
(1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken
or would conflict with this Indenture or if the Trustee in good
faith shall, by a Responsible Officer, determine that the
proceedings so directed would involve it in personal liability or
be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all the Securities of
such series waive any
past default hereunder with respect to such series and its
consequences, except a default not theretofore cured
(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series, or in the payment of
any sinking or purchase fund or analogous obligation with respect
to the Securities of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right
consequent thereon.
Section 514. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series to which the suit
relates, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date).
Section 515. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no
such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default with respect to any
series of Securities,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to the Securities of such series, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may, with respect to Securities of such series, conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default with respect to any series
of Securities has occurred and is continuing, the Trustee shall
exercise with respect to the Securities of such series such of the
rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
Section 602. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to Securities of any
series, the Trustee shall transmit by mail to all Securityholders of
such series, as their names and addresses appear in the Security
Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such
series or in the payment of any sinking or purchase fund installment
or analogous obligation with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long
as the
board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of
the Securityholders of such series; and provided, further, that in the
case of any default of the character specified in Section 501(4) with
respect to Securities of such series no such notice to Securityholders
of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term
"default", with respect to Securities of any series, means any event
which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee. Except as otherwise
provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Securityholders pursuant to this Indenture,
unless such Securityholders shall have offered to the Trustee
reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investi-
gation 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; and
(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.
Section 604. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities,
except the certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility
for their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The
Trustee shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605. May Hold Securities. The Trustee, any Paying
Agent, the Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613, may otherwise deal
with the Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise
agreed with the Company.
Section 607. Compensation and Reimbursement. The Company
agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable 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
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust,
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.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of
principal of (and premium, if any) or interest on particular
Securities.
Section 608. Disqualification; Conflicting Interests. The
Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act
during the period of time provided for therein. In determining whether
the Trustee has a conflicting interest as defined in Section 310(b) of
the Trust Indenture Act with respect to the Securities of any series,
there shall be excluded for purposes of the conflicting interest
provisions of such Section 310(b) the Securities of every other series
issued under this Indenture and (a) the Indenture dated as of December
27, 1990, between the Company and Chemical Bank, as Trustee; (b) the
Indenture of Trust dated as of June 1, 1983 between Uinta County,
Wyoming and Chemical Bank, as Trustee,
under which $17,000,000 aggregate principal amount of Floating Rate
Monthly Demand Pollution Control Revenue Bonds (▇▇▇▇▇▇▇▇ Petroleum
Company Project) Series 1983 have been issued, the payment of which
Bonds is supported by certain payment obligations of ▇▇▇▇▇▇▇▇
Petroleum Company (which is now called Union Pacific Resources
Company) ("▇▇▇▇▇▇▇▇") to Uinta County and assigned by Uinta County to
said Trustee under a Loan Agreement dated as of June 1, 1983 between
Uinta County, ▇▇▇▇▇▇▇▇ and the Company relating to such Bonds, which
payment obligations have been guaranteed by the Company pursuant to
such Loan Agreement; (c) the Indenture of Trust dated as of June 1,
1983 between Lincoln County, Wyoming and Chemical Bank, as Trustee,
under which $3,100,000 aggregate principal amount of Floating Rate
Monthly Demand Pollution Control Revenue Bonds (▇▇▇▇▇▇▇▇ Petroleum
Company Project) Series 1983 have been issued, the payment of which
Bonds is supported by certain payment obligations of ▇▇▇▇▇▇▇▇ to
Lincoln County and assigned by Lincoln County to said Trustee under a
Loan Agreement dated as of June 1, 1983 between Lincoln County,
▇▇▇▇▇▇▇▇ and the Company relating to such Bonds, which payment
obligations have been guaranteed by the Company pursuant to such Loan
Agreement; (d) the Trust Indenture dated as of June 1, 1989 between
the Port of Corpus Christi Authority of Nueces County, Texas (the
"Port") and Chemical Bank, as Trustee, under which $40,000,000
aggregate principal amount of Variable Rate Demand Revenue Refunding
Bonds, Series 1989 (Union Pacific Corporation Project) have been
issued, the payment of which Bonds is supported by certain payment
obligations of the Company to the Port and assigned by the Port to
said Trustee under an Installment Payment and Bond Amortization
Agreement dated as of June 1, 1989 between the Port and the Company;
(e) the Trust Indenture dated as of September 1, 1992 between the Port
and Chemical Bank, as Trustee, under which $16,650,000 aggregate
principal amount of Variable Rate Demand Revenue Refunding Bonds,
Series 1992 (Union Pacific Corporation Project) have been issued, the
payment of which Bonds is supported by certain payment obligations of
the Company to the Port and assigned by the Port to said Trustee under
an Installment Payment and Bond Amortization Agreement dated as of
September 1, 1992 between the Port and the Company; and (f) the
Indenture, Deed of Trust and Security Agreement dated as of July 15,
1983 between United States Trust Company of New York, as Owner
Trustee, and Chemical Bank, as Indenture Trustee, under which 12.05%
Loan Certificates due December 31, 2003 have been issued, the payment
of which Certificates is supported by certain rental obligations of
▇▇▇▇▇▇▇▇ to said Owner Trustee and assigned by said Owner Trustee to
said Indenture
Trustee under a Lease Agreement dated as of July 15, 1983 between
▇▇▇▇▇▇▇▇ and said Owner Trustee, as supplemented, which rental
obligations have been guaranteed by the Company pursuant to a
Guarantee Agreement dated as of July 15, 1983 between the Company and
said Owner Trustee and assigned by said Owner Trustee to said
Indenture Trustee. Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the second
to last paragraph of Section 310(b) of the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder with respect to each series
of Securities, which shall be a corporation organized and doing
business under the laws of the United States of America or of any
State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by Federal or State authority.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee with
respect to any series of Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in
this Article.
Section 610. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 611.
(b) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in
principal amount of the Outstanding
Securities of that series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of
the Trust Indenture Act pursuant to Section 608(a) with respect
to any series of Securities after written request therefor by the
Company or by any Securityholder who has been a bona fide Holder
of a Security of that series for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to any series of Securities and shall fail to resign
after written request therefor by the Company or by any such
Securityholder, or
(3) the Trustee shall become incapable of acting with
respect to any series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or
a receiver of the Trustee or of its property shall be appointed
or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, with respect to the series, or in the case of
Clause (4), with respect to all series, or (ii) subject to Section
514, any Securityholder who has been a bona fide Holder of a Security
of such series for at least 6 months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to the series, or, in the case of
Clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a
vacancy shall occur in the office of the Trustee with respect to any
series of Securities for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee for that series
of Securities. If, within one year after such resignation, removal or
incapacity, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities of such series
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to such series
and supersede the successor Trustee appointed by the Company with
respect to such series. If no successor Trustee with respect to such
series shall have been so appointed by the Company or the
Securityholders of such series and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide
Holder of a Security of that series for at least 6 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 such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to any series and each
appointment of a successor Trustee with respect to any series by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of that series as their names
and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee and the address of its
principal Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the predecessor Trustee an instrument
accepting such appointment, and thereupon the resignation or removal
of the predecessor Trustee shall become effective with respect to any
series as to which it is resigning or being removed as Trustee, and
such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of
the predecessor Trustee with respect to any such series; but, on
request of the Company or the successor Trustee, such predecessor
Trustee shall, upon payment of its reasonable charges, if any, execute
and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the predecessor Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all
property and money held by such predecessor Trustee hereunder with
respect to all or any such series, subject nevertheless to its lien,
if any, provided for in Section 607. Upon request of any such
successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the predecessor Trustee and each successor Trustee with
respect to the Securities of any applicable series shall execute and
deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the predecessor Trustee
with respect to the Securities of any series as to which the
predecessor Trustee is not being succeeded shall continue to be vested
in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that each
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.
No successor Trustee with respect to any series of
Securities shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible with
respect to that series under this Article.
Section 612. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against
Company. (a) Subject to Subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured
or unsecured, of the Company within 3 months prior to a default, as
defined in
Subsection (c) of this Section, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set
apart and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of other
indenture securities (as defined in Subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such
3-month period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt
or disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which
the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the
beginning of such 3-month period, or an amount equal to the
proceeds of any such property, if disposed of, subject, however,
to the rights, if any, of the Company and its other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee
(A) to retain for its own account (i) payments made on
account of any such claim by any Person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable State law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such 3-month period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such 3-month period and such
property was received as security therefor simultaneously
with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so
received the Trustee had no reasonable cause to believe that
a default as defined in Subsection (c) of this Section would
occur within 3 months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in paragraph (B)
or (C), as the case may be, to the extent of the fair value
of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such 3-month period for property
held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as
the property released, and, to the extent that any claim referred to
in any of such paragraphs is created in renewal of or in substitution
for or for the purpose of repaying or refunding any pre-existing claim
of the Trustee as such creditor, such claim shall have the same status
as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall
be apportioned between the Trustee, the Securityholders and the
holders of other indenture securities in such manner that the Trustee,
the Securityholders and the holders of other indenture securities
realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, the
same percentage of their respective claims, figured before crediting
to the claim of the Trustee anything on account of the receipt by it
from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee and the
Securityholders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable
State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources
other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to
any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings
for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash,
securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or proceedings
for reorganization is pending shall have jurisdiction (i) to apportion
between the Trustee and the Securityholders and the holders of other
indenture securities in accordance with the provisions of this
paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration
in determining the fairness of the distributions to be made to the
Trustee and the Securityholders and the holders of other indenture
securities with respect to their respective claims, in which event it
shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such 3-month period shall be subject to the provisions of
this Subsection as though such resignation or removal had not
occurred. If any Trustee has resigned or been removed prior to the
beginning of such 3-month period, it shall be subject to the
provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim,
which would have given rise to the obligation to account, if
such Trustee had continued as Trustee, occurred after the
beginning of such 3-month period; and
(ii) such receipt of property or reduction of claim
occurred within 3 months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity
of one year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction, or by this Indenture, for the
purpose of preserving any property which shall at any time be
subject to the lien of this Indenture or of discharging tax liens
or other prior liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the making thereof
is given to the Securityholders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent,
registrar, custodian, paying agent, fiscal agent or depositary,
or other similar capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of
goods or securities sold in a cash transaction as defined in
Subsection (c) of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of
the Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which
fall within the classification of self liquidating paper as
defined in Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of
this Section, and (iii) under which a default exists at the time
of the apportionment of the funds and property held in such
special account.
(3) The term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within
7 days after delivery of the goods or securities in currency or
in checks or other orders drawn upon banks or bankers and payable
upon demand.
(4) The term "self-liquidating paper" means any draft, ▇▇▇▇
of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacturing, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise
previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, ▇▇▇▇ of exchange,
acceptance or obligation.
(5) The term "Company" means any obligor upon the
Securities.
Section 614. Appointment of Authenticating Agent. At any
time when any of the Securities remain Outstanding the Trustee, with
the approval of the Company, may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities
of such
series issued upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by
the Trustee hereunder. Wherever reference is made in this Indenture to
the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at
all times be a corporation organized and doing business under the laws
of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as an Authenticating
Agent, having a combined capital and surplus of not less than
$50,000,000 and, if other than the Company itself, subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and, if other than the Company,
to the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent
and, if other than the Company, to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee, with the
approval of the Company, may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall mail written notice
of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
(other than an Authenticating Agent appointed at the request of the
Company from time to time) reasonable compensation for its services
under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
CHEMICAL BANK,
as Trustee
By:
As Authenticating Agent
By:
Authorized Officer
ARTICLE SEVEN
Securityholders' Lists and Reports by
Trustee and Company
Section 701. Company To Furnish Trustee Names and Addresses
of Securityholders. The Company will furnish or cause to be furnished
to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, in each year in such form as the Trustee may
reasonably require, a list of the names and addresses of the
Holders of Securities of such series as of such date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders of
Securities contained in the most recent list furnished to the Trustee
as provided in Section 701 and the names and addresses of Holders of
Securities received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) If 3 or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Security of such series for a period of at least
6 months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities
and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the
Trustee shall,
within 5 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
702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
702(a), and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder of a Security of such
series or to all Securityholders, as the case may be, whose names
and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 702(a), a copy of the form of proxy
or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to
be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within 5 days after such
tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the Holders of
Securities of such series or all Securityholders, as the case may be,
or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all Securityholders of such series or all
Securityholders, as the case may be, with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders
of Securities in accordance with Section 702(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 702(b).
Section 703. Reports by Trustee. (a) The term "reporting
date" as used in this Section means May 15. Within 60 days after the
reporting date in each year, beginning in 1996, the Trustee shall
transmit by mail to all Securityholders, as their names and addresses
appear in the Security Register, a brief report dated as of such
reporting date with respect to any of the following events which may
have occurred during the 12 months preceding the date of such report
(but if no such event has occurred within such period no report need
be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the
Trust Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) which remain unpaid
on the date of such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that of Securities
of any series, on any property or funds held or collected by it
as Trustee, except that the Trustee shall not be required (but
may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount
of the Securities of such series outstanding on the date of such
report;
(4) any change to the amount, interest rate and maturity
date of all other indebtedness owing by the Company (or by any
other obligor on the Securities) to the Trustee in its individual
capacity, on the date of such report, with a brief description of
any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in a
manner described in Section 613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such
report;
(6) any additional issue of Securities which the Trustee has
not previously reported; and
(7) any action taken by the Trustee in the performance of
its duties hereunder which it has not previously reported and
which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is to
be withheld by the Trustee in accordance with Section 602.
(b) The Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear in the Security
Register, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since
the date of the last report transmitted pursuant to Subsection (a) of
this Section (or if no such report has yet been so transmitted, since
the date of execution of this instrument) for the reimbursement of
which it claims or may claim a lien or charge, prior to that of the
Securities of any series, on property or funds held or collected by it
as Trustee, and which it has not previously reported pursuant to this
Subsection, except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at
any time aggregate 10% or less of the principal amount of the
Securities Outstanding of such series at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each
stock exchange upon which the Securities are listed, and also with the
Commission. The Company will notify the Trustee when the Securities
are listed on any stock exchange.
Section 704. Reports by Company. The Company will
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to
either of said Sections, then it will file with the Trustee and
the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(3) transmit by mail to all Securityholders, as their names
and addresses appear in the Security Register, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the
Company pursuant to paragraphs (1) and (2) of this Section as may
be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey or transfer its
properties and assets substantially as an entirety to any Person,
unless:
(1) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America or any
State or the District of Columbia, and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor corporation had
been named as the Company herein. In the event of any such conveyance
or transfer, the Company as the predecessor corporation may be
dissolved, wound up or liquidated at any time thereafter.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Securityholders. Without the consent of the Holders of any Securities,
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:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained;
or
(2) to add to the covenants of the Company, or to surrender
any right or power herein conferred upon the Company, for the
benefit of the Holders of the Securities of any or all series
(and if such covenants or the surrender of such right or power
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included or such
surrenders are expressly being made solely for the benefit of one
or more specified series); or
(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; or
(4) to add to this Indenture such provisions as may be
expressly permitted by the TIA, excluding, however, the
provisions referred to in Section 316(a)(2) of the TIA as in
effect at the date as of which this instrument was executed or
any corresponding provision in any similar federal statute
hereafter enacted; or
(5) to establish any form of Security, as provided in
Article Two, and to provide for the issuance of any series of
Securities as provided in Article Three and to set forth the
terms thereof, and/or to add to the rights of the Holders of the
Securities of any series; or
(6) to evidence and provide for the acceptance of
appointment by another corporation as a successor Trustee
hereunder with respect to one or more series of Securities 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
Section 611; or
(7) to add any additional Events of Default in respect of
the Securities of any or all series (and if such additional
Events of Default are to be in respect of less than all series of
Securities, stating that such Events of Default are expressly
being included solely for the benefit of one or more specified
series); or
(8) to provide for the issuance of Securities in coupon as
well as fully registered form.
No supplemental indenture for the purposes identified in
Clauses (2), (3), (5) or (7) above may be entered into if to do so
would adversely affect the interest of the Holders of Securities of
any series.
Section 902. Supplemental Indentures with Consent of
Securityholders. With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each
series affected by such supplemental indenture or indentures, 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 the Securities of each such series under this
Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Maturity of the principal of, or the Stated
Maturity of any premium on, or any installment of interest on,
any Security, or reduce the principal amount thereof or the
interest or any premium thereon, or change the method of
computing the amount of principal thereof or interest thereon on
any date or change any Place of Payment where, or the coin or
currency in which, any Security 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
Maturity or the Stated Maturity, as the case may be, thereof (or,
in the case of redemption or repayment, on or after the
Redemption Date or the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences, provided for in this Indenture;
or
(3) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of Securityholders
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 903. 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 601) 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 (except to the extent
required in the case of a supplemental indenture entered into under
Section 901(4) or 901(6)) be obligated to, enter into any such
supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby to the
extent provided therein.
Section 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform
to the requirements of the TIA as then in effect.
Section 906. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture.
If the Company shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to
any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
With respect to each series of Securities, the Company will duly and
punctually pay the principal of (and premium, if any) and interest on
such Securities in accordance with their terms and this Indenture, and
will duly comply with all the other terms, agreements and conditions
contained in, or made in the Indenture for the benefit of, the
Securities of such series.
Section 1002. Maintenance of Office or Agency. The Company
will maintain an office or agency in each Place of Payment where
Securities may be presented or surrendered for payment, where
Securities may be surrendered for transfer or exchange and where
notices and demands to or
upon the Company in respect of the Securities and this Indenture may
be served. The Company will give prompt written notice to the Trustee
of the location, and of any change in the location, of such office or
agency. If at any time the Company shall fail to maintain such office
or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be
made or served at the principal Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
Section 1003. Money for Security Payments to be Held in
Trust. If the Company shall at any time act as its own Paying Agent
for any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on, any of the
Securities of such series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities, it will, on or prior to each due date of
the principal of (and premium, if any) or interest on, any Securities
of such series, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to
such principal (and premium, if any) or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee for any series of Securities to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities of such series in
trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the
making of any such payment of principal (and premium, if any) or
interest on the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture with respect to any
series of Securities 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 in respect of each and every
series of Securities as to which it seeks to discharge this Indenture
or, if for any other purpose, all sums so held in trust by the Company
in respect of all Securities, 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 premium, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease. The Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of the Company mail to the Holders of the Securities as to
which the money to be repaid was held in trust, as their names and
addresses appear in the Security Register, a notice that such moneys
remain unclaimed and that, after a date specified in the notice, which
shall not be less than 30 days from the date on which the notice was
first mailed to the Holders of the Securities as to which the money to
be repaid was held in trust, any unclaimed
balance of such moneys then remaining will be paid to the Company free
of the trust formerly impressed upon it.
The Company initially authorizes the Trustee to act as
Paying Agent for the Securities on its behalf. The Company may at any
time and from time to time authorize one or more Persons to act as
Paying Agent in addition to or in place of the Trustee with respect to
any series of Securities issued under this Indenture.
Section 1004. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal
year, a written statement signed by the principal executive officer,
principal financial officer or principal accounting officer of the
Company, stating that
(1) a review of the activities of the Company during such
year and of the Company's performance under this Indenture and
under the terms of the Securities has been made under his
supervision; and
(2) to the best of his knowledge, based on such review, the
Company has complied with all conditions and covenants under this
Indenture through such year, or, if there has been a default in
the fulfillment of any such obligation, specifying each such
default known to him and the nature and status thereof.
Section 1005. Corporate Existence. Subject to Article Eight
the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence.
Section 1006. Limitation on Liens. (a) The Company will not,
nor will it permit any Subsidiary to, create, assume, incur or suffer
to exist any Mortgage upon any stock or indebtedness, whether owned on
the date of this Indenture or hereafter acquired, of any Domestic
Subsidiary, to secure any Debt of the Company or any other Person
(other than the Securities), without in any such case making effective
provision whereby all of the Securities Outstanding shall be directly
secured equally and ratably with such Debt, excluding, however, from
the operation of the foregoing provisions of this Subsection (a) any
Mortgage upon stock or indebtedness of any corporation existing at the
time such corporation becomes a Domestic Subsidiary, or existing upon
stock or indebtedness of a Domestic Subsidiary at the time of
acquisition of such stock or indebtedness, and any extension, renewal
or replacement (or successive
extensions, renewals or replacements) in whole or in part of any such
Mortgage; provided, however, that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt so secured at
the time of such extension, renewal or replacement; and provided
further, that such Mortgage shall be limited to all or such part of
the stock or indebtedness which secured the Mortgage so extended,
renewed or replaced.
(b) The Company will not, nor will it permit any Restricted
Subsidiary to, create, assume, incur or suffer to exist any Mortgage
upon any Principal Property, whether owned or leased on the date of
this Indenture or hereafter acquired, to secure any Debt of the
Company or any other Person (other than the Securities), without in
any such case making effective provision whereby all of the Securities
outstanding shall be directly secured equally and ratably with such
Debt, excluding, however, from the operation of the foregoing
provisions of this Subsection (b):
(i) any Mortgage upon property owned or leased by any
corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(ii) any Mortgage upon property existing at the time of
acquisition thereof or to secure the payment of all or any part
of the purchase price thereof or to secure any Debt incurred
prior to, at the time of or within 180 days after the acquisition
of such property for the purpose of financing all or any part of
the purchase price thereof;
(iii) any Mortgage upon property to secure all or any part
of the cost of exploration, drilling, development, construction,
alteration, repair or improvement of all or any part of such
property, or Debt incurred prior to, at the time of or within 180
days after the completion of such exploration, drilling,
development, construction, alteration, repair or improvement for
the purpose of financing all or any part of such cost;
(iv) any Mortgage securing Debt of a Restricted Subsidiary
owing to the Company or to another Restricted Subsidiary;
(v) any Mortgage existing at the date of this Indenture; and
(vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
Mortgage referred to in the foregoing clauses (i) to (v),
inclusive; provided, however, that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement;
and provided further, that such Mortgage shall be limited to all
or such part of the property which secured the Mortgage so
extended, renewed or replaced (plus improvements on such
property).
Notwithstanding the foregoing provisions of this Subsection (b), the
Company may, and may permit any Restricted Subsidiary to, create,
assume, incur or suffer to exist any Mortgage upon any Principal
Property which is not excepted by clauses (i) through (vi) above
without equally and ratably securing the Securities, provided that the
aggregate amount of all Debt then outstanding secured by such Mortgage
and all similar Mortgages does not exceed 10% of the total
consolidated stockholders' equity of the Company as shown on the
audited consolidated balance sheet contained in the latest annual
report to stockholders of the Company. For the purpose of this
Subsection (b), the following types of transactions shall not be
deemed to create a Mortgage to secure any Debt:
(i) the sale or other transfer of (A) any oil or gas or
minerals in place for a period of time until, or in an amount
such that, the purchaser will realize therefrom a specified
amount of money (however determined) or a specified amount of
such oil or gas or minerals, or (B) any other interest in
property of the character commonly referred to as a "production
payment"; and
(ii) any Mortgage in favor of the United States of America
or any State thereof, or any other country, or any political
subdivision of any of the foregoing, to secure partial, progress,
advance or other payments pursuant to the provisions of any
contract or statute, or any Mortgage upon property of the Company
or a Restricted Subsidiary intended to be used primarily for the
purpose of or in connection with air or water pollution control,
provided that no such Mortgage shall extend to any other property
of the Company or any Restricted Subsidiary.
Section 1007. Limitation on Transfers of Principal
Properties to Unrestricted Subsidiaries. The Company will not, nor
will it permit any Restricted Subsidiary to, sell, transfer or
otherwise dispose of any Principal Property to any Unrestricted
Subsidiary other than for cash or other consideration which, in the
opinion of the Board of Directors, constitutes fair value for such
Principal Property.
Section 1008. Waiver of Certain Covenants. The Company may
omit in respect of any series of Securities, in any particular
instance, to comply with any covenant or condition set forth in
Sections 1006 and 1007, if before or after the time for such
compliance the Holders of at least a majority in principal amount of
the Securities at the time Outstanding of such series shall, by Act of
such Securityholders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in
full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. The Company may
reserve the right to redeem and pay before Stated Maturity all or any
part of the Securities of any series, either by optional redemption,
sinking or purchase fund or analogous obligation or otherwise, by
provision therefor in the form of Security for such series established
and approved pursuant to Section 202 and on such terms as are
specified in such form or in the Board Resolution or indenture
supplemental hereto with respect to Securities of such series as
provided in Section 301. Redemption of Securities of any series shall
be made in accordance with the terms of such Securities and, to the
extent that this Article does not conflict with such terms, the
succeeding Sections of this Article.
Section 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities redeemable at the
election of the Company shall be evidenced by, or made pursuant to
authority granted by, a
Board Resolution. In case of any redemption at the election of the
Company of any Securities of any series, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms
of such Securities or elsewhere in this Indenture, or (ii) pursuant to
an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of like tenor and terms of
any series are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may include
provision for the selection for redemption of portions of the
principal of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
Unless otherwise provided in the terms of a particular series of
Securities, the portions of the principal of Securities so selected
for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple
thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of
such series. If less than all the Securities of unlike tenor and terms
of a series are to be redeemed, the particular Securities to be
redeemed shall be selected by the Company.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the
portion of the principal of such Security which has been or is to be
redeemed.
Section 1104. Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date, to each
holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the
Securities to be redeemed, from the Holder to whom the notice is
given;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, and that
interest, if any, thereon shall cease to accrue from and after
said date;
(5) the place where such Securities are to be surrendered
for payment of the Redemption Price, which shall be the office or
agency of the Company in the Place of Payment; and
(6) that the redemption is on account of a sinking or
purchase fund, or other analogous obligation, if that be the
case.
Notice of redemption of Securities 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 1105. Deposit of Redemption Price. On or prior to
any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date. Notice
of Redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption
Price) such Securities shall cease to bear interest. Upon surrender of
such Securities for redemption in accordance with the notice, such
Securities shall be paid by the Company at the Redemption Price.
Installments of interest the Stated Maturity of which is on or prior
to the Redemption Date shall be payable to the Holders of such
Securities registered as such on the relevant Regular Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid, bear interest from the Redemption Date at the rate borne by the
Security, or as otherwise provided in such Security.
Section 1107. Securities Redeemed in Part. Any Security
which is to be redeemed only in part shall be surrendered at the
office or agency of the Company in the Place of Payment with respect
to that series (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security
or Securities of the same series and Stated Maturity and of like tenor
and terms, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
Section 1108. Provisions with Respect to any Sinking Funds.
Unless the form or terms of any series of Securities shall provide
otherwise, in lieu of making all or any part of any mandatory sinking
fund payment with respect to such series of Securities in cash, the
Company may at its option (1) deliver to the Trustee for cancellation
any Securities of such series theretofore acquired by the Company, or
(2) receive credit for any Securities of such series (not previously
so credited) acquired by the Company and theretofore delivered to the
Trustee for cancellation or redeemed by the Company other than through
the mandatory sinking fund, and if it does so then (i) Securities so
delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii)
on or before the 60th day next preceding each sinking fund Redemption
Date with respect to such series of Securities, the Company will
deliver to the Trustee (A) an Officers' Certificate specifying the
portions of such sinking fund payment to be satisfied by payment of
cash and by delivery or credit of Securities of such series acquired
by the Company or so redeemed, and (B) such Securities so acquired, to
the extent not previously surrendered. Such Officers' Certificate
shall also state the basis for such credit and that the Securities for
which the Company elects to receive credit have not been previously so
credited and were not redeemed by the Company through operation of the
mandatory sinking fund, if any, provided with respect to such
Securities and shall also state that no Event of Default with respect
to Securities of such series has occurred and is continuing. All
Securities so delivered to the Trustee shall be cancelled by the
Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or
optional) with respect to any series of Securities made in cash plus
any unused balance of any preceding sinking fund payments with respect
to Securities of such series made in cash shall exceed $50,000 (or a
lesser sum if the Company shall so request), unless otherwise provided
by the terms of such series of Securities, that cash shall be applied
by the Trustee on the sinking fund Redemption Date with respect to
Securities of such series next following the date of such payment to
the redemption of Securities of such series at the applicable sinking
fund Redemption Price with respect to Securities of such series,
together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The Trustee
shall select, in the manner provided in Section 1103, for redemption
on such sinking fund Redemption Date a sufficient principal amount of
Securities of such series to utilize that cash and shall thereupon
cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 1104 (and
with the effect provided in Section 1106) for the redemption of
Securities in part at the option of the Company. Any sinking fund
moneys not so applied or allocated by the Trustee to the redemption of
Securities of such series shall be added to the next cash sinking fund
payment with respect to Securities of such series received by the
Trustee and, together with such payment, shall be applied in
accordance with the provisions
of this Section 1108. Any and all sinking fund moneys with respect to
Securities of any series held by the Trustee at the Maturity of
Securities of such series, and not held for the payment or redemption
of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited
sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the Company shall pay to the
Trustee in cash a sum equal to all accrued interest, if any, to the
date fixed for redemption on Securities to be redeemed on such sinking
fund Redemption Date pursuant to this Section 1108.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the day and year first
above written.
UNION PACIFIC CORPORATION,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------
Assistant Secretary
CHEMICAL BANK,
by /s/ ▇. ▇. ▇▇▇▇▇
--------------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: Vice President
Attest:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Trust Officer