CSX TRANSPORTATION, INC., AS ISSUER AND THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE INDENTURE Dated as of December 13, 2007 Senior Securities
Exhibit
4.3
EXECUTION
COPY
CSX
TRANSPORTATION, INC., AS ISSUER
AND
THE
BANK
OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE
_______________
Dated
as
of December 13, 2007
_______________
Senior
Securities
Reconciliation
and tie between
and
Indenture
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Trust
Indenture
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Act
Section
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Indenture
Section
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Section
310(a)(1)
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608,
612
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(a)(2)
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608,
612
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(b)
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605,
609
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Section
312(a)
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701,
702
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(b)
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702
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(c)
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702
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Section
313(a)
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703
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(b)
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703
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(c)
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703,
704
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(d)
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703
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Section
314(a)
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704
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(c)(1)
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102
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(c)(2)
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102
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(e)
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101,
102, 103
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(f)
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102
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Section
315(a)
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601
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(b)
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603
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(c)
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601
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(d)
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601
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(e)
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515,
609
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Section
316(a) (last sentence)
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101
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(a)(1)(A)
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512
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(a)(1)(B)
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513
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(b)
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508
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(c)
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104(5)
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Section
317(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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Section
318(a)
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108
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Note:
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This
reconciliation and tie shall not, for any purpose, be deemed to be
part of
the Indenture.
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| Attention should also be directed to Section 318(c) of the Trust Indenture Act, which provides that the provisions of Section 310 to and including 317 are a part of the provisions which govern every qualified indenture, whether or not physically contained herein. |
INDENTURE,
dated as of December 13,
2007 (the “Indenture”), between CSX TRANSPORTATION, INC., a corporation duly
organized and existing under the laws of the Commonwealth of Virginia
(hereinafter called the “Company”), having its principal executive office
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and The Bank of
New
York Trust Company N.A., a New York banking corporation (hereinafter called
the
“Trustee”), having its Corporate Trust Office located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (Attention: Florida Corporate).
The
Company has duly authorized the
execution and delivery of this Indenture to provide for the issuance from
time
to time of its debentures, notes or other evidences of indebtedness, unlimited
as to principal amount, to bear such rates of interest, to mature at such
time
or times, to be issued in one or more series and to have such other provisions
as shall be fixed as hereinafter provided. All things necessary to
make this Indenture a valid agreement of the Company, in accordance with
its
terms, have been done.
This
Indenture is subject to the
provisions of the Trust Indenture Act of 1939, as amended, and the rules
and
regulations of the Securities and Exchange Commission promulgated thereunder
that are required to be part of this Indenture and, to the extent applicable,
shall be governed by such provisions.
NOW,
THEREFORE, THIS INDENTURE
WITNESSETH:
For
and in consideration of the
premises and the purchase of the Securities by the Holders (as herein defined)
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof and any
Coupons (as herein defined) as follows:
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
101. Definitions.
Except
as otherwise expressly provided
in or pursuant to this Indenture or unless the context otherwise requires,
for
all purposes of this Indenture:
(1) the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all
accounting terms not otherwise defined herein have the meanings assigned
to them
in accordance with generally accepted accounting principles in the United
States
of America and, except as otherwise herein expressly provided, the terms
“generally accepted accounting principles” or “GAAP” 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) the
words “herein”, “hereof”, “hereto” 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) the
word “or” is always used inclusively (for example, the phrase “A or B” means “A
or B or both”, not “either A or B but not both”).
Certain
terms used principally in
certain Articles hereof are defined in those Articles.
“Act”,
when used with
respect to any Holders, has the meaning specified in Section 104.
“Additional
Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by
the
Company in respect of certain taxes, assessments or other governmental charges
imposed on Holders specified therein and which are owing to such Holders.
Whenever the Company is required to pay an Additional Amount it shall deliver
an
Officers’ Certificate to the Trustee stating such Additional Amount per $1,000
in aggregate principal amount of Securities.
“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 pursuant to Section 612 to act on behalf of the Trustee to
authenticate Securities of one or more series.
“Authorized
Newspaper” means a newspaper, in an
official language of the place of publication or in the English language,
customarily published on each day that is a Business Day in the place of
publication, whether or not published on days that are legal holidays in
the
place of publication, and of general circulation in each place in connection
with which the term is used or in the financial community of each such
place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same
or in
different newspapers in the same city meeting the foregoing requirements
and in
each case on any day that is a Business Day in the place of
publication.
“Bankruptcy
Law” has the meaning specified in Section 501.
“Bearer
Security” means any Security in the form established pursuant to
Section 201 which is payable to bearer.
“Board
of
Directors” means the board of directors of the Company or any committee of
that board duly authorized to act generally or in any particular respect
for the
Company hereunder.
“Board
Resolution” means a copy of one or more resolutions, certified by the
Corporate Secretary or an Assistant Corporate 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, delivered to the Trustee.
“Business
Day”, with respect to any Place of Payment or other location, means, unless
otherwise specified with respect to any Securities pursuant to Section 301,
any day other than a Saturday, Sunday or other day on which banking institutions
in such Place of Payment or other location are authorized or obligated by
law,
regulation or executive order to close.
“Clearstream”
means Clearstream Banking société anonyme, or its successor.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at
any
time after the execution of this Indenture such Commission is not existing
and
performing the duties now assigned to it under the Trust Indenture Act, then
the
body performing such duties at such time.
“Common
Stock”
includes any stock of any class of the Company which has no preference
in
respect of dividends or of amounts payable in the event of any voluntary
or
involuntary liquidation, dissolution or winding up of the Company and which
is
not subject to redemption by the Company.
“Company”
means
the
Person named as the “Company” in the first paragraph of this instrument until
another successor Person shall have become such pursuant to the applicable
provisions of this Indenture, at which point “Company” shall mean such other
successor Person, and any other obligor upon the Securities.
“Company
Request” and “Company Order” mean,
respectively, a written request or order, as the case may be, signed in the
name
of the Company by any two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Corporate Secretary of the Company, and delivered
to
the Trustee.
“Conversion
Event” means the cessation of use of (i) a Foreign Currency both by the
government of the country or the confederation which issued such Foreign
Currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community,
(ii) the Euro both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Union or (iii) any currency unit or composite currency other than the Euro
for the purposes for which it was established.
“Corporate
Trust Office” means either
(A) the principal corporate trust office of the Trustee in which at any
particular time its corporate trust business shall be administered, which
office
at the date of original execution of this Indenture is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Florida Corporate, or (B) for
purposes of Sections 301(9) and 1002, the principal corporate trust office
of
the Trustee in the Borough of Manhattan, The City of New York at which at
any
particular time its corporate trust business shall be administered in The
City
of New York, which office at the date of original execution of this Indenture
is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; provided that, for
purposes of any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document or notice provided or permitted
by
this Indenture to be made upon, given or furnished to, or filed with, the
Trustee, whether pursuant to Section 105 or otherwise, “Corporate Trust
Office” means any office referred to in clause (A) of this
paragraph.
“Corporation”
and “corporation” includes corporations, associations, companies and business
trusts.
“Coupon”
means
any
interest coupon appertaining to a Bearer Security.
“Currency”,
with
respect to any payment, deposit or other transfer in respect of the principal
of
or any premium or interest on or any Additional Amounts with respect to any
Security, means Dollars or the Foreign Currency, as the case may be, in which
such payment, deposit or other transfer is required to be made by or pursuant
to
the terms hereof or such Security and, with respect to any other payment,
deposit or transfer pursuant to or contemplated by the terms hereof or such
Security, means Dollars.
“CUSIP
Number”
means the alphanumeric designation assigned to a Security by Standard
&
Poor’s, CUSIP Service Bureau.
“Custodian”
means
any receiver, trustee, assignee, liquidator, custodian or similar official
under
any Bankruptcy Law.
“Defaulted
Interest” has the meaning specified in Section 307.
“Depository”
means, with respect to any Security issuable or issued in the form of one
or
more global Securities, the Person designated as Depository by the Company
in or
pursuant to this Indenture, which Person must be, to the extent required
by
applicable law or regulation, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, if so provided with respect to any
Security, any successor to such Person. If at any time there is more
than one such Person, “Depository” shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such
Securities. Unless otherwise established as contemplated by
Section 301, the Depository shall be The Depository Trust Company, New
York, New York.
“Dollars”
or
“$” means a dollar or other equivalent unit of legal tender for payment of
public or private debts in the United States of America.
“Euro”
means
the basic
unit of currency among participating European Union countries from time to
time.
“Euroclear”
means
Euroclear Bank S.A./N.V., as the operator of the Euroclear System, and any
successor thereto.
“European
Monetary System” means the European
Monetary System established by the Resolution of December 5, 1978 of the
Council
of the European Community.
“European
Union” means the European Economic Community, the European Coal and Steel
Community and the European Atomic Energy Community.
“Event
of
Default” has the meaning specified in Section 501.
“Foreign
Currency” means any currency, currency unit or composite currency,
including, without limitation, the Euro, issued by the government of one
or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
“GAAP”
means
such
accounting principles as are generally accepted in the United States of America
as of the date or time of any computation required hereunder.
“Government
Obligations” means securities which
are (i) direct obligations of the United States of America or the other
government or governments in the confederation which issued the Foreign Currency
in which the principal of or any premium or interest on such Security or
any
Additional Amounts in respect thereof shall be payable, in each case where
the
payment or payments thereunder are supported by the full faith and credit
of
such government or governments or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States
of America or such other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a
full
faith and credit obligation by the United States of America or such other
government or governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers thereof, and
shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of or other amount with respect to any such Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such
depository receipt from any amount received by the custodian in respect of
the
Government Obligation or the specific payment of interest on or principal
of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.
“Guarantee”
means
any guarantee of the Securities of a particular series if so specified in
the
supplemental indenture establishing the terms of such series pursuant to
Section
301 hereof.
“Guarantor”
means, for any Securities of a particular series in respect of which a Guarantee
has been provided, each Person providing such Guarantee, and includes any
successor to Guarantor.
“Holder”,
in the
case of any Registered Security, means the Person in whose name such Security
is
registered in the Security Register and, in the case of any Bearer Security,
means the bearer thereof and, in the case of any Coupon, means the bearer
thereof.
“Indenture”
means
this instrument 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, with respect to any Security, by the terms and provisions
of such Security and any Coupon appertaining thereto established pursuant
to
Section 301 (as such terms and provisions may be amended pursuant to the
applicable provisions hereof).
“Indexed
Security” means a Security the terms of which provide that the principal
amount thereof payable at Stated Maturity may be more or less than the principal
face amount thereof at original issuance.
“Interest
Payment Date”, with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.
“Judgment
Currency” has the meaning specified in Section 116.
“Lien”
means
any
mortgage, pledge, lien, encumbrance, charge or security interest of any kind
securing an Obligation.
“Maturity”,
with
respect to any Security, means the date on which the principal of such Security
or an installment of principal becomes due and payable as provided in or
pursuant to this Indenture, whether at the Stated Maturity or by declaration
of
acceleration, notice of redemption or repurchase, notice of option to elect
repayment or otherwise, and includes the Redemption Date.
“New
York
Banking Day” has the meaning specified in Section 116.
“Obligation”
means indebtedness for borrowed money or indebtedness evidenced by a bond,
note,
debenture or other evidence of indebtedness.
“Office”
or
“Agency”, with respect to any Securities, means an office or agency of the
Company maintained or designated in a Place of Payment for such Securities
pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or,
to the extent designated or required by Section 1002 in lieu of such office
or agency, the Corporate Trust Office of the Trustee.
“Officer”
means
the
Chairman of the Board, if any, the President, any Vice President, the Treasurer,
the Corporate Secretary or the Controller of the Company.
“Officers’
Certificate” means a certificate signed by two Officers or by any Officer
and either an Assistant Treasurer or an Assistant Corporate Secretary of
the
Company, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
“Opinion
of
Counsel” means a written opinion of counsel, who may be an employee of or
counsel for the Company or other counsel, in any case, who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture
Act.
“Original
Issue Discount Security”
means a Security issued pursuant to this Indenture which provides for
declaration of an amount less than the principal face amount thereof to be
due
and payable upon acceleration pursuant to Section 502.
“Outstanding”,
when used with respect to any Securities, means, as of the date of
determination, all such Securities theretofore authenticated and delivered
under
this Indenture, except:
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(a)
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any
such Security theretofore cancelled by the Trustee or the Security
Registrar or delivered to the Trustee or the Security Registrar
for
cancellation;
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(b)
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any
such Security for whose payment at the Maturity thereof money in
the
necessary amount has been theretofore deposited pursuant hereto
(other
than pursuant to Section 402) with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in
trust by
the Company (if the Company shall act as its own Paying Agent)
for the
Holders of such Securities and any Coupons appertaining thereto,
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;
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(c)
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any
such Security with respect to which the Company has effected defeasance
or
covenant defeasance pursuant to Section 402, except to the extent
provided in Section 402;
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(d)
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any
such Security which has been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, unless there shall have
been
presented to the Trustee proof satisfactory to it that such Security
is
held by a bona fide purchaser in whose hands such Security is a
valid
obligation of the Company; and
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(e)
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any
such Security converted or exchanged as contemplated by this Indenture
into Common Stock or other securities, if the terms of such Security
provide for such conversion or exchange pursuant to
Section 301;
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provided,
however, that in determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting
of
Holders of Securities for quorum purposes, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes
shall
be equal to the amount of the principal thereof that pursuant to the terms
of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and
(ii) the principal amount of any Indexed Security that may be counted in
making such determination and that shall be deemed outstanding for such purpose
shall be equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and
(iii) the principal amount of a Security denominated in a Foreign Currency
shall be the Dollar equivalent, determined on the date of original issuance
of
such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of original issuance
of
such Security of the amount determined as provided in (i) above) of such
Security, and (iv) Securities owned by the Company or any Affiliate of the
Company shall be disregarded and deemed not to be Outstanding, except that,
in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities with respect to which
a
Responsible Officer of the Trustee receives an Officers’ Certificate from the
Company stating that such Securities are so owned shall be so
disregarded. Securities so owned which shall have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee (A) the pledgee’s right so to act with respect
to such Securities and (B) that the pledgee is not the Company or an
Affiliate of the Company.
“Paying
Agent”
means any Person authorized by the Company to pay the principal of, or
any
premium or interest on, or any Additional Amounts with respect to, any Security
or any Coupon on behalf of the Company.
“Person”
means
any
individual, Corporation, partnership, joint venture, joint-stock company,
limited liability company, trust, unincorporated organization or government
or
any agency or political subdivision thereof.
“Place
of
Payment”, with respect to any Security, means the place or places where the
principal of, or any premium or interest on, or any Additional Amounts with
respect to such Security are payable as provided in or pursuant to this
Indenture or such Security.
“Predecessor
Security” of any particular Security
means every previous Security evidencing all or a portion of the same
indebtedness as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a lost, destroyed, mutilated or
stolen Security or any Security to which a mutilated, destroyed, lost or
stolen
Coupon appertains shall be deemed to evidence the same indebtedness as the
lost,
destroyed, mutilated or stolen Security or the Security to which a mutilated,
destroyed, lost or stolen Coupon appertains.
“Principal
Subsidiary” means The Baltimore and Ohio Chicago Terminal Railroad Company,
an Illinois corporation.
“Redemption
Date”, with respect to any Security or portion thereof to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture or such
Security.
“Redemption
Price”, with respect to any Security or portion thereof to be redeemed,
means the price at which it is to be redeemed as determined by or pursuant
to
this Indenture or such Security.
“Registered
Security” means any Security in the form established pursuant to
Section 201 which is registered in the Security Register.
“Regular
Record Date” for the interest payable on any Registered Security on any
Interest Payment Date therefor means the date, if any, specified in or pursuant
to this Indenture or such Security as the “Regular Record Date”.
“Required
Currency” has the meaning specified in Section 116.
“Responsible
Officer” means with respect to the
Trustee, any officer of the Trustee in the Florida Corporate – Corporate Trust
Unit (or any successor unit or department) of the Trustee located at the
Corporate Trust Office of the Trustee who has direct responsibility for
administration of the Indenture and, for purposes of Sections 601(c)(2) and
603,
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer’s knowledge of
and familiarity with the particular subject.
“Securities
Act” means the Securities Act of 1933, as amended.
“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, authenticated and delivered under this
Indenture; provided, however, that, if at any time there is more than one
Person
acting as Trustee under this Indenture, “Securities”, with respect to any such
Person, shall mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is
not
Trustee.
“Security
Register” and “Security Registrar”
have the respective meanings specified in Section 305.
“Special
Record Date” for the payment of any Defaulted Interest on any Registered
Security means a date fixed by the Trustee pursuant to
Section 307.
“Stated
Maturity”, with respect to any Security or any installment of principal
thereof or interest thereon or any Additional Amounts with respect thereto,
means the date established by or pursuant to this Indenture or such Security
as
the fixed date on which the principal of such Security or such installment
of
principal or interest is, or such Additional Amounts are, due and
payable.
“Subsidiary”
means with respect to any Person, a corporation or other legal entity a majority
of the outstanding Voting Stock or analogous equity interest of which is
owned,
directly or indirectly, by such Person or one or more of such Person’s
Subsidiaries, or by such Person and one or more of such Person’s
Subsidiaries.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended, and any
reference herein to the Trust Indenture Act or a particular provision thereof
shall mean such Act or provision, as the case may be, as amended or replaced
from time to time or as supplemented from time to time by rules or regulations
adopted by the Commission under or in furtherance of the purposes of such
Act or
provision, as the case may be.
“Trustee”
means
the
Person named as the “Trustee” in the first paragraph of this instrument until a
successor Trustee shall have become such with respect to one or more series
of
Securities pursuant to the applicable provisions of this Indenture, and
thereafter “Trustee” shall mean each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
“Trustee” shall mean each such Person and as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of such
series.
“United
States” means the United States of America (including the states thereof and
the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
“United
States Alien”, except as otherwise provided in or pursuant to this Indenture
or any Security, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual
or a
non-resident alien fiduciary of a foreign estate or trust.
“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”.
“Voting
Stock”
means stock having voting power for the election of directors, whether
at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
Section
102. Compliance
Certificates and Opinions.
Except
as otherwise expressly provided
in this Indenture, upon any application or request by the Company to the
Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers’ Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that,
in the
opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request
as to
which the furnishing of such documents or any of them is specifically required
by any provision of this Indenture relating to such particular application
or
request, no additional certificate or opinion need be furnished.
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 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 may be based, insofar as it relates to legal matters, upon an Opinion
of
Counsel, unless such Officer knows, or in the exercise of reasonable care
should
know, that the Opinion of Counsel with respect to the matters upon which
his
certificate or opinion is based is erroneous. Any such 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
stating
that the information with respect to such factual matters is in the possession
of the Company unless such counsel knows 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 or any Security,
they may, but need not, be consolidated and form one instrument.
Section
104. Acts of
Holders.
(1) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by or pursuant to this Indenture to be given or taken by
Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed
in
writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture
to be
given or taken by Holders of Securities of such series may, alternatively,
be
embodied in and evidenced by the record of Holders of Securities of such
series
voting in favor thereof, either in person or by proxies duly appointed
in
writing, at any meeting of Holders of Securities of such series duly called
and
held in accordance with the provisions of Article Fifteen, or a combination
of
such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument
or
instruments or record or both, in each case, which satisfy the required
percentages in principal amount of Outstanding Securities, are delivered
to the
Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to
as the “Act” of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent, or of the holding by any Person of
a
Security, shall be sufficient for any purpose of this Indenture and (subject
to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee
and the Company and any agent of the Trustee or the Company, if made in
the
manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in
Section 1506.
Without
limiting the generality of this
Section 104, unless otherwise provided in or pursuant to this Indenture, a
Holder, including a Depository that is a Holder of a global Security, may
make,
give or take, by a proxy, or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other Act
provided
in or pursuant to this Indenture or the Securities to be made, given or
taken by
Holders, and a Depository that is a Holder of a global Security may provide
its
proxy or proxies to the beneficial owners of interests in any such global
Security through such Depository’s standing instructions and customary
practices.
(2) The
fact and date of the execution by any Person of any such instrument or
writing
may be proved in any reasonable manner which the Trustee deems sufficient
and in
accordance with such reasonable rules as the Trustee may determine; and
the
Trustee may in any instance require further proof with respect to any of
the
matters referred to in this Section.
(3) The
ownership, principal amount and serial numbers of Registered Securities
held by
any Person, and the date of the commencement and the date of the termination
of
holding the same, shall be proved by the Security Register.
(4) The
ownership, principal amount and serial numbers of Bearer Securities held
by any
Person, and the date of the commencement and the date of the termination
of
holding the same, may be proved by the production of such Bearer Securities
or
by a certificate executed, as depositary, by any trust company, bank, banker
or
other depositary reasonably acceptable to the Company, wherever situated,
if
such certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had
on
deposit with such depositary, or exhibited to it, the Bearer Securities
therein
described; or such facts may be proved by the certificate or affidavit
of the
Person holding such Bearer Securities, if such certificate or affidavit
is
deemed by the Company and the Trustee to be satisfactory. The Trustee
and the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The
ownership, principal amount and serial numbers of Bearer Securities held
by the
Person so executing such instrument or writing and the date of the commencement
and the date of the termination of holding the same may also be proved
in any
other manner which the Company and the Trustee deem sufficient.
(5) If
the Company shall solicit from the Holders of any Registered Securities
any
request, demand, authorization, direction, notice, consent, waiver or other
Act,
the Company may at its option (but is not obligated to), by Board Resolution,
fix in advance a record date for the determination of Holders of Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver
or other
Act may be given before or after such record date, but only the Holders
of
Registered Securities of record at the close of business on such record
date
shall be deemed to be Holders for the purpose of determining whether Holders
of
the requisite proportion of Outstanding Securities have authorized or agreed
or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall
be
computed as of such record date.
(6) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
by the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof in respect
of
anything done or suffered to be done by the Trustee, any Security Registrar,
any
Paying Agent, Guarantor or the Company in reliance thereon, whether or
not
notation of such Act is made upon such Security.
Section
105. Notices,
Etc. to Trustee, Company and Guarantor.
Any
request, demand, authorization,
direction, notice, consent, waiver or other Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished
to,
or filed with,
(1) the
Trustee by any Holder, Guarantor or 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 sent by facsimile transmission
to the
addressee (with written confirmation of actual receipt from the Trustee)
at the
number specified by the Trustee, or
(2) the
Company by the Trustee, Guarantor or any Holder shall be sufficient for
every
purpose hereunder (unless otherwise herein expressly provided) if in writing
and
mailed, first-class postage prepaid, to the Company addressed to the attention
of its Treasurer or delivered by guaranteed overnight courier 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
or sent by facsimile transmission to ▇▇▇-▇▇▇-▇▇▇▇ (with written confirmation
of
actual receipt from the Company), or
(3) Guarantor
by the Trustee, the Company or any Holder shall be sufficient for every
purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed,
first-class postage prepaid, or delivered by guaranteed overnight courier
to
Guarantor addressed to the attention of its designee at the address of
its
principal or other office specified by the Guarantor or at any other address
previously furnished in writing to the Trustee by Guarantor or sent by
facsimile
transmission to the number specified by the Guarantor (with written confirmation
of actual receipt from the Guarantor).
Section
106. Notice to
Holders of Securities; Waiver.
Except
as otherwise expressly provided
in or pursuant to this Indenture, where this Indenture provides for notice
to
Holders of Securities of any event,
(1) such
notice shall be sufficiently given to Holders of Registered Securities
if in
writing and mailed, first-class postage prepaid, to each Holder of a Registered
Security 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; and
(2) such
notice shall be sufficiently given to Holders of Bearer Securities, if
any, if
published in an Authorized Newspaper in The City of New York and, if such
Securities are then listed on any stock exchange outside the United States,
in
an Authorized Newspaper in such city as the Company shall advise the Trustee
that such stock exchange so requires, on a Business Day at least twice,
the
first such publication to be not earlier than the earliest date and the
second
such publication not later than the latest date prescribed for the giving
of
such notice.
In
any case where notice to Holders of
Registered Securities is given by mail, neither the failure to mail such
notice,
nor any defect in any notice so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with respect to other
Holders of Registered Securities or the sufficiency of any notice to Holders
of
Bearer Securities given as provided herein. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to
have been
duly given or provided. In the case by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable
to give such notice by mail, then such notification as shall be made with
the
approval of the Trustee shall constitute a sufficient notification for
every
purpose hereunder.
In
case by reason of the suspension of
publication of any Authorized Newspaper or Authorized Newspapers or by
reason of
any other cause it shall be impracticable to publish any notice to Holders
of
Bearer Securities as provided above, then such notification to Holders
of Bearer
Securities as shall be given with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose
hereunder. Neither failure to give notice by publication to Holders
of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of any notice mailed to Holders
of
Registered Securities as provided above.
Where
this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and
such
waiver shall be the equivalent of such notice. Waivers of notice by
Holders of Securities shall be filed with the Trustee, but such filing
shall not
be a condition precedent to the validity of any action taken in reliance
upon
such waiver.
Section
107. Language of
Notices.
Any
request, demand, authorization,
direction, notice, consent, election or waiver required or permitted under
this
Indenture shall be in the English language, except that, if the Company
so
elects, any published notice may be in an official language of the country
of
publication.
Section
108. Conflict
with Trust Indenture Act.
If
any provision hereof limits,
qualifies or conflicts with any duties under any required provision of
the Trust
Indenture Act imposed hereon by Section 318(c) thereof, such required
provision shall control.
Section
109. 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
110. Successors
and Assigns.
All
covenants and agreements in this
Indenture by the Company, Guarantor or Trustee shall bind its respective
successors and assigns, whether so expressed or not.
Section
111. Separability
Clause.
In
case any provision in this
Indenture, any Security or any Coupon 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
112. Benefits of
Indenture.
Nothing
in this Indenture, any Security
or any Coupon, express or implied, shall give to any Person, other than
the
parties hereto, any Security Registrar, any Paying Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any
legal or
equitable right, remedy or claim under this Indenture.
Section
113. Governing
Law.
This
Indenture (including any Guarantee
with respect to any Securities), the Securities and any Coupons shall be
governed by and construed in accordance with the laws of the State of New
York
applicable to agreements made or instruments entered into and, in each
case,
performed in said state.
Section
114. Business
Days.
Unless
otherwise specified in or
pursuant to this Indenture or any Securities, in any case where any Interest
Payment Date, Stated Maturity or Maturity of any Security shall not be
a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture, any Security or any Coupon other than a provision in
any
Security or Coupon that specifically states that such provision shall apply
in
lieu hereof) payment need not be made at such Place of Payment on such
date but
such payment may be made on the next succeeding day that is a Business
Day at
such Place of Payment with the same force and effect as if made on the
Interest
Payment Date or at the Stated Maturity or Maturity, and no interest shall
accrue
on the amount payable on such date or at such time for the period from
and after
such Interest Payment Date, Stated Maturity or Maturity, as the case may
be, to
the next succeeding Business Day.
Section
115. Counterparts.
This
Indenture may be executed in
several counterparts, each of which shall be an original and all of which
shall
constitute but one and the same instrument.
Section
116. 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,
or
Additional Amounts 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
preceding the day on which a 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
clause (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 obligated by law, regulation or executive order to be
closed.
SECURITIES
FORMS
Section
201. Forms
Generally.
Each
Registered Security, Bearer
Security, Coupon and temporary or permanent global Security issued pursuant
to
this Indenture shall be in the form established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, shall have
such
appropriate insertions, omissions, substitutions and other variations as
are
required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the Officers executing such Security
or
Coupon as evidenced by their execution of such Security or Coupon.
Unless
otherwise provided in or
pursuant to this Indenture or any Securities, the Securities shall be issuable
in registered form without Coupons.
Definitive
Securities and definitive
Coupons shall be printed, lithographed or engraved or produced by any
combination of these methods on a steel engraved border or steel engraved
borders or may be produced in any other manner, all as determined by the
Officers executing such Securities or Coupons, as evidenced by their execution
of such Securities or Coupons.
Section
202. Form of
Trustee’s Certificate of Authentication.
Subject
to Section 612, the
Trustee’s certificate of authentication shall be in substantially the following
form:
This
is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
The
Bank of New York Trust Company, N.A.,
|
||
|
as
Trustee
|
||
|
By
|
||
|
Authorized
Officer
|
||
Section
203. Securities
in Global Form.
Unless
otherwise provided in or
pursuant to this Indenture or any Securities, the Securities shall be issuable
in global form. If Securities of a series shall be issuable in
temporary or permanent global form, any such Security may provide that
it or any
number of such Securities shall represent the aggregate amount of all
Outstanding Securities of such series (or such lesser amount as is permitted
by
the terms thereof) from time to time endorsed thereon and may also provide
that
the aggregate amount of Outstanding Securities represented thereby may
from time
to time be increased or reduced to reflect exchanges. Any endorsement
of any Security in global form to reflect the amount, or any increase or
decrease in the amount, or changes in the rights of Holders, of Outstanding
Securities represented thereby shall be made in such manner and by such
Person
or Persons as shall be specified therein or in the Company Order to be
delivered
pursuant to Section 303 or 304 with respect thereto. Subject to
the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form
in the
manner and upon instructions given by the Person or Persons specified therein
or
in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to a Security in global form shall
be
in writing but need not be accompanied by or contained in an Officers’
Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding
the provisions of
Section 307, unless otherwise specified in or pursuant to this Indenture or
any Securities, payment of principal of, any premium and interest on, and
any
Additional Amounts in respect of any Security in temporary or permanent
global
form shall be made to the Person or Persons specified therein.
Notwithstanding
the provisions of
Section 308 and except as provided in the preceding paragraph, the Company,
Guarantor, the Trustee and any agent of the Company, Guarantor and the
Trustee
shall treat as the Holder of such principal amount of Outstanding Securities
represented by a global Security (i) in the case of a global Security in
registered form, the Holder of such global Security in registered form,
or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 301.
THE
SECURITIES
Section
301. Amount
Unlimited; Issuable in Series.
The
aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture
is
unlimited. The Securities may be issued in one or more
series.
With
respect to any Securities to be
authenticated and delivered hereunder, there shall be established in or
pursuant
to a Board Resolution and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental hereto prior to the issuance of
any
Securities of a series,
(1) the
title of such Securities and the series in which such Securities shall
be
included;
(2) any
limit upon the aggregate principal amount of the Securities of such title
or the
Securities of such series which may be authenticated and delivered under
this
Indenture (except for Securities authenticated and delivered upon registration
or transfer of, or in exchange for, or in lieu of, other Securities of
such
series pursuant to Section 304, 305, 306, 905 or 1107, upon repayment in
part of any Registered Security of such series pursuant to Article Thirteen,
upon surrender in part of any Registered Security for conversion or exchange
into Common Stock or other securities pursuant to its terms, or pursuant
to the
terms of such Securities);
(3) if
such Securities are to be issuable as Registered Securities, as Bearer
Securities or alternatively as Bearer Securities and Registered Securities,
and
whether the Bearer Securities are to be issuable with Coupons, without
Coupons
or both, and any restrictions applicable to the offer, sale or delivery
of the
Bearer Securities and the terms, if any, upon which Bearer Securities may
be
exchanged for Registered Securities and vice versa;
(4) if
any of such Securities are to be issuable in global form, when any of such
Securities are to be issuable in global form and (i) whether such
Securities are to be issued in temporary or permanent global form or both,
(ii) whether beneficial owners of interests in any such global Security may
exchange such interests for Securities of the same series and of like tenor
and
of any authorized form and denomination, and the circumstances under which
any
such exchanges may occur, if other than in the manner specified in
Section 305, and (iii) the name of the Depository, as the case may be,
with respect to any global Security;
(5) if
any of such Securities are to be issuable as Bearer Securities or in global
form, the date as of which any such Bearer Security or global Security
shall be
dated (if other than the date of original issuance of the first of such
Securities to be issued);
(6) if
any of such Securities are to be issuable as Bearer Securities, whether
interest
in respect of any portion of a temporary Bearer Security in global form
payable
in respect of an Interest Payment Date therefor prior to the exchange,
if any,
of such temporary Bearer Security for definitive Securities shall be paid
to any
clearing organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest
payment
received by a clearing organization will be credited to the Persons entitled
to
interest payable on such Interest Payment Date;
(7) the
date or dates; or the method or methods, if any, by which such date or
dates
shall be determined, on which the principal of such Securities is
payable;
(8) the
rate or rates at which such Securities shall bear interest, if any, or
the
method or methods, if any, by which such rate or rates are to be determined,
the
date or dates, if any, from which such interest shall accrue or the method
or
methods, if any, by which such date or dates are to be determined, the
Interest
Payment Dates, if any, on which such interest shall be payable and the
Regular
Record Date, if any, for the interest payable on Registered Securities
on any
Interest Payment Date, under what circumstances, if any, Additional Amounts
on
such Securities or any of them shall be payable, the notice, if any, to
Holders
regarding the determination of interest on a floating rate Security and
the
manner of giving such notice, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day
months;
(9) if
in addition to or other than the Borough of Manhattan, The City of New
York, the
place or places where the principal of, any premium and interest on or
any
Additional Amounts with respect to such Securities shall be payable, any
of such
Securities that are Registered Securities may be surrendered for registration
of
transfer or exchange, any of such Securities may be surrendered for conversion
or exchange and notices or demands to or upon the Company in respect of
such
Securities and this Indenture may be served, the extent to which, or the
manner
in which, any interest payment or Additional Amounts on a global Security
on an
Interest Payment Date will be paid and the manner in which any principal
of or
premium, if any, on any global Security will be paid;
(10) whether
any of such Securities are to be redeemable at the option of the Company
and, if
so, the date or dates on which, the period or periods within which, the
price or
prices at which and the other terms and conditions upon which such Securities
may be redeemed, in whole or in part, at the option of the Company;
(11) if
the Company is obligated to redeem or purchase any of such Securities pursuant
to any sinking fund or analogous provision or at the option of any Holder
thereof and, if so, the date or dates on which, the period or periods within
which, the price or prices at which and the other terms and conditions
upon
which such Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation, and any provisions for the remarketing of
such
Securities so redeemed or purchased;
(12) the
denominations in which any of such Securities that are Registered Securities
shall be issuable if other than denominations of $2,000 and integral multiples
of $1,000 in excess thereof, and the denominations in which any of such
Securities that are Bearer Securities shall be issuable if other than the
denomination of $5,000;
(13) if
the Securities of the series will be convertible into shares of Common
Stock
and/or exchangeable for other securities, the terms and conditions upon
which
such Securities will be so convertible or exchangeable, and any deletions
from
or modifications or additions to this Indenture to permit or to facilitate
the
issuance of such convertible or exchangeable Securities or the administration
thereof;
(14) if
other than the principal amount thereof, the portion of the principal amount
of
any of such Securities that shall be payable upon declaration of acceleration
of
the Maturity thereof pursuant to Section 502 or the method by which such
portion is to be determined;
(15) if
other than Dollars, the Foreign Currency in which payment of the principal
of,
any premium or interest on or any Additional Amounts with respect to any
of such
Securities shall be payable;
(16) if
the principal of, any premium or interest on or any Additional Amounts
with
respect to any of such Securities are to be payable, at the election of
the
Company or a Holder thereof or otherwise, in Dollars or in a Foreign Currency
other than that in which such Securities are stated to be payable, the
date or
dates on which, the period or periods within which, and the other terms
and
conditions upon which, such election may be made, and the time and manner
of
determining the exchange rate between the Currency in which such Securities
are
stated to be payable and the Currency in which such Securities or any of
them
are to be paid pursuant to such election, and any deletions from or
modifications of or additions to the terms of this Indenture to provide
for or
to facilitate the issuance of Securities denominated or payable, at the
election
of the Company or a Holder thereof or otherwise, in a Foreign
Currency;
(17) whether
the amount of payments of principal of, any premium or interest on or any
Additional Amounts with respect to such Securities may be determined with
reference to an index, formula or other method or methods (which index,
formula
or method or methods may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and, if so,
the terms
and conditions upon which and the manner in which such amounts shall be
determined and paid or payable;
(18) any
deletions from, modifications of or additions to the Events of Default
or
covenants of the Company with respect to any of such Securities, whether
or not
such Events of Default or covenants are consistent with the Events of Default
or
covenants set forth herein;
(19) if
either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable to
the Securities of such series, or any covenants in addition to those specified
in Section 402(3) relating to the Securities of such series which shall be
subject to covenant defeasance, and any deletions from, or modifications
or
additions to, the provisions of Article Four in respect of the Securities
of
such series;
(20) if
any of such Securities are to be issuable upon the exercise of warrants,
and the
time, manner and place for such Securities to be authenticated and
delivered;
(21) if
any of such Securities are to be issuable in global form and are to be
issuable
in definitive form (whether upon original issue or upon exchange of a temporary
Security) only upon receipt of certain certificates or other documents
or
satisfaction of other conditions, then the form and terms of such certificates,
documents or conditions;
(22) if
there is more than one Trustee, the identity of the Trustee and, if not
the
Trustee, the identity of each Security Registrar, Paying Agent or Authenticating
Agent with respect to such Securities;
(23) if
such Securities are to be secured, the description of the collateral securing
such Securities;
(24) if
such Securities are to be guaranteed by Guarantor, the terms and conditions,
if
any, of such Guarantee; and
(25) any
other terms of such Securities and any deletions from or modifications
or
additions to this Indenture in respect of such Securities.
All
Securities of any one series and
all Coupons, if any, appertaining to Bearer Securities of such series shall
be
substantially identical except as to Currency of payments due thereunder,
denomination and the rate of interest, or method of determining the rate
of
interest, if any, Maturity, and the date from which interest, if any, shall
accrue and except as may otherwise be provided by the Company in or pursuant
to
the Board Resolution and set forth in the Officers’ Certificate or in any
indenture or indentures supplemental hereto pertaining to such series of
Securities. The terms of the Securities of any series may provide,
without limitation, that the Securities shall be authenticated and delivered
by
the Trustee on original issue from time to time upon telephonic or written
order
of persons designated in the Officers’ Certificate or supplemental indenture
(telephonic instructions to be promptly confirmed in writing by such person)
and
that such persons are authorized to determine, consistent with such Officers’
Certificate or any applicable supplemental indenture, such terms and conditions
of the Securities of such series as are specified in such Officers’ Certificate
or supplemental indenture. All Securities of any one series need not
be issued at the same time and, unless otherwise so provided by the Company,
a
series may be reopened for issuances of additional Securities of such series
or
to establish additional terms of such series of Securities.
If
any of the terms of the Securities
of any series shall be established by action taken by or pursuant to a
Board
Resolution, the Board Resolution shall be delivered to the Trustee at or
prior
to the delivery of the Officers’ Certificate setting forth the terms of such
series.
Section
302. Currency;
Denominations.
Unless
otherwise provided in or
pursuant to this Indenture, the principal of, any premium and interest
on and
any Additional Amounts with respect to the Securities shall be payable
in
Dollars. Unless otherwise provided in or pursuant to this Indenture,
Registered Securities denominated in Dollars shall be issuable in registered
form without Coupons in denominations of $2,000 and integral multiples
of $1,000
in excess thereof, and Bearer Securities denominated in Dollars shall be
issuable in the denomination of $5,000. Securities not denominated in
Dollars shall be issuable in such denominations as are established with
respect
to such Securities in or pursuant to this Indenture.
Section
303. Execution,
Authentication, Delivery and Dating.
Securities
shall be executed on behalf
of the Company by any Officer or by any other individual authorized to
do so in
or pursuant to the Board Resolution establishing such
Securities. Coupons shall be executed on behalf of the Company by any
Officer or by one of the Assistant Corporate Secretaries of the
Company. The signature of any of these officers on the Securities or
any Coupons appertaining thereto may be manual or facsimile.
Securities
and any Coupons appertaining
thereto bearing the manual or facsimile signatures of individuals who were
at
any time the proper Officers 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 or Coupons.
At
any time and from time to time after
the execution and delivery of this Indenture, the Company may deliver
Securities, together with any Coupons appertaining thereto, executed by
the
Company, to the Trustee for authentication and, provided that the Board
Resolution and Officers’ Certificate or supplemental indenture or indentures
with respect to such Securities referred to in Section 201 or 301 and a
Company Order for the authentication and delivery of such Securities have
been
delivered to the Trustee, the Trustee in accordance with the Company Order
and
subject to the provisions hereof and of such Securities shall authenticate
and
deliver such Securities. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation
to
such Securities and any Coupons appertaining thereto, the Trustee shall
be
entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust
Indenture Act) shall be fully protected in relying upon,
(1) an
Opinion of Counsel to the effect that:
(a) the
form or forms and terms of such Securities and Coupons, if any, have been
established in conformity with the provisions of this Indenture;
and
(b) all
conditions precedent to the authentication and delivery of such Securities
and
Coupons, if any, appertaining thereto have been complied with and that
such
Securities and Coupons, when completed by appropriate insertions, executed
by a
duly authorized Officer, delivered by a duly authorized Officer to the
Trustee
for authentication pursuant to this Indenture, and authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be subject
to or
limited by bankruptcy, insolvency, reorganization, moratorium, arrangement,
fraudulent conveyance, fraudulent transfer or other similar laws relating
to or
affecting creditors’ rights generally, and subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or
at law), and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Securities denominated
other than in United States dollars (or a Foreign Currency or Judgment
Currency
in respect of such claim) be converted into United States dollars at a
rate of
exchange prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the making of
payments in Foreign Currency or payments outside the United States;
and
(2) an
Officers’ Certificate stating that, to the best knowledge of the Persons
executing such certificate, no event which is, or after notice or lapse
of time
would become, an Event of Default with respect to any of the Securities
shall
have occurred and be continuing.
If
all the Securities of any series are
not to be issued at one time, it shall not be necessary to deliver an Opinion
of
Counsel at the time of issuance of each Security, but such opinion, with
such
modifications as counsel shall deem appropriate, shall be delivered at
or before
the time of issuance of the first Security of such series. After any
such first delivery, any separate request by the Company that the Trustee
authenticate Securities of such series for original issue will be deemed
to be a
certification by the Company that all conditions precedent provided for
in this
Indenture relating to authentication and delivery of such Securities continue
to
have been complied with.
The
Trustee shall not be required to
authenticate or to cause an Authenticating Agent to authenticate any Securities
if the issue of such Securities pursuant to this Indenture will affect
the
Trustee’s own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to
the
Trustee or if the Trustee, being advised by counsel, determines that such
action
may not lawfully be taken.
Each
Registered Security shall be dated
the date of its authentication. Each Bearer Security and any Bearer
Security in global form shall be dated as of the date specified in or pursuant
to this Indenture. No Security or Coupon appertaining thereto 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 in Section 202 or 612
executed by or on behalf of the Trustee or by the Authenticating Agent
by the
manual signature of one of its authorized officers. Such certificate
upon any Security shall be conclusive evidence, and the only evidence,
that such
Security has been duly authenticated and delivered hereunder. Except
as permitted by Section 306 or 307, the Trustee shall not authenticate and
deliver any Bearer Security unless all Coupons appertaining thereto then
matured
have been detached and cancelled.
Section
304. Temporary
Securities.
Pending
the preparation of definitive
Securities, the Company may execute and deliver to the Trustee and, upon
Company
Order, the Trustee shall authenticate and deliver, in the manner provided
in
Section 303, temporary Securities in lieu thereof 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, in registered form or, if authorized in or pursuant
to
this Indenture, in bearer form with one or more Coupons or without Coupons
and
with such appropriate insertions, omissions, substitutions and other variations
as the Officer executing such Securities may determine, as conclusively
evidenced by such Officer’s execution of such Securities. Such
temporary Securities may be in global form.
Except
in the case of temporary
Securities in global form, which shall be exchanged in accordance with
the
provisions thereof, if temporary Securities are issued, the Company shall
cause
definitive Securities to be prepared without unreasonable
delay. After the preparation of definitive Securities of the same
series and containing terms and provisions that are identical to those
of any
temporary Securities, such temporary Securities shall be exchangeable for
such
definitive Securities upon surrender of such temporary Securities at an
Office
or Agency for such Securities, without charge to any Holder
thereof. Upon surrender for cancellation of any one or more temporary
Securities (accompanied by any unmatured Coupons appertaining thereto),
the
Company shall execute and the Trustee shall authenticate and deliver in
exchange
therefor a like principal amount of definitive Securities of authorized
denominations of the same series and containing identical terms and provisions;
provided, however, that no definitive Bearer Security, except as provided
in or
pursuant to this Indenture, shall be delivered in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in or pursuant to this Indenture.
Unless otherwise provided in or pursuant to this Indenture with respect
to a
temporary global Security, until so exchanged the temporary Securities
of any
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.
With
respect to the Registered
Securities of each series, if any, the Company shall cause to be kept a
register
(each such register being herein sometimes referred to as the “Security
Register”) at an Office or Agency for such series in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for
the
registration of the Registered Securities of such series and of transfers
of the
Registered Securities of such series. Such Office or Agency shall be
the “Security Registrar” for that series of Securities. Unless
otherwise specified in or pursuant to this Indenture or the Securities,
the
Trustee shall be the initial Security Registrar for each series of
Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities;
provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have
been
appointed by the Company and shall have accepted such appointment. In
the event that the Trustee shall not be or shall cease to be Security Registrar
with respect to a series of Securities, it shall have the right to examine
the
Security Register for such series at all reasonable times. There
shall be only one Security Register for each series of Securities.
Upon
surrender for registration of
transfer of any Registered Security of any series at any Office or Agency
for
such series, the Company shall execute, and the Trustee shall authenticate
and
deliver, in the name of the designated transferee or transferees, one or
more
new Registered Securities of the same series denominated as authorized
in or
pursuant to this Indenture, of a like aggregate principal amount bearing
a
number not contemporaneously outstanding and containing identical terms
and
provisions.
At
the option of the Holder, Registered
Securities of any series may be exchanged for other Registered Securities
of the
same series containing identical terms and provisions, in any authorized
denominations, and of a like aggregate principal amount, upon surrender
of the
Securities to be exchanged at any Office or Agency for such
series. Whenever any Registered Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate
and
deliver, the Registered Securities which the Holder making the exchange
is
entitled to receive.
If
provided in or pursuant to this
Indenture, with respect to Securities of any series, at the option of the
Holder, Bearer Securities of such series may be exchanged for Registered
Securities of such series containing identical terms, denominated as authorized
in or pursuant to this Indenture and in the same aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any Office or
Agency
for such series, with all unmatured Coupons and all matured Coupons in
default
thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured Coupon or Coupons or matured Coupon or Coupons
in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Trustee in an amount
equal
to the face amount of such missing Coupon or Coupons, or the surrender
of such
missing Coupon or Coupons may be waived by the Company and the Trustee
if there
is furnished to them such security or indemnity as they may require to
save each
of them and any Paying Agent harmless. If thereafter the Holder of
such Bearer Security shall surrender to any Paying Agent any such missing
Coupon
in respect of which such a payment shall have been made, such Holder shall
be
entitled to receive the amount of such payment; provided, however, that,
except
as otherwise provided in Section 1002, interest represented by Coupons
shall be payable only upon presentation and surrender of those Coupons
at an
Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of
any series is surrendered at any such Office or Agency for such series
in
exchange for a Registered Security of such series and like tenor after
the close
of business at such Office or Agency on (i) any Regular Record Date and
before the opening of business at such Office or Agency on the relevant
Interest
Payment Date, or (ii) any Special Record Date and before the opening of
business at such Office or Agency on the related date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon
relating
to such Interest Payment Date or proposed date of payment, as the case
may be
(or, if such Coupon is so surrendered with such Bearer Security, such Coupon
shall be returned to the Person so surrendering the Bearer Security), and
interest or Defaulted Interest, as the case may be, shall not be payable
on such
Interest Payment Date or proposed date for payment, as the case may be,
in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
If
provided in or pursuant to this
Indenture with respect to Securities of any series, at the option of the
Holder,
Registered Securities of such series may be exchanged for Bearer Securities
upon
such terms and conditions as may be provided in or pursuant to this Indenture
with respect to such series.
Whenever
any Securities are surrendered
for exchange as contemplated by the immediately preceding two paragraphs,
the
Company shall execute, and the Trustee shall authenticate and deliver,
the
Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding
the foregoing, except
as otherwise provided in or pursuant to this Indenture, any global Security
shall be exchangeable for definitive Securities only if (i) the Depository
is at any time unwilling, unable or ineligible to continue as Depository
and a
successor depository is not appointed by the Company within 90 days of
the date
the Company is so informed in writing, (ii) the Company executes and
delivers to the Trustee a Company Order to the effect that such global
Security
shall be so exchangeable, or (iii) an Event of Default has occurred and is
continuing with respect to the Securities. If the beneficial owners
of interests in a global Security are entitled to exchange such interests
for
definitive Securities as the result of an event described in clause (i),
(ii) or
(iii) of the preceding sentence, then without unnecessary delay but in
any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities in such
form and
denominations as are required by or pursuant to this Indenture, and of
the same
series, containing identical terms and in aggregate principal amount equal
to
the principal amount of such global Security, executed by the
Company. On or after the earliest date on which such interests may be
so exchanged, such global Security shall be surrendered from time to time
by the
Depository as shall be specified in the Company Order with respect thereto,
and
in accordance with instructions given to the Trustee and the Depository
(which
instructions shall be in writing but need not be contained in or accompanied
by
an Officers’ Certificate or be accompanied by an Opinion of Counsel), as shall
be specified in the Company Order with respect thereto to the Trustee,
as the
Company’s agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion
of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and
of like
tenor as the portion of such global Security to be exchanged, which (unless
such
Securities are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as provided in or pursuant to this Indenture) shall be in the
form of
Bearer Securities or Registered Securities, or any combination thereof,
as shall
be specified by the beneficial owner thereof, but subject to the satisfaction
of
any certification or other requirements to the issuance of Bearer Securities;
provided, however, that no such exchanges may occur during a period beginning
at
the opening of business 15 days before any selection of Securities of the
same
series to be redeemed and ending on the relevant Redemption Date; and provided
further that (unless otherwise provided in or pursuant to this Indenture)
no
Bearer Security delivered in exchange for a portion of a global Security
shall
be mailed or otherwise delivered to any location in the United
States. Promptly following any such exchange in part, such global
Security shall be returned by the Trustee to such Depository or such other
Depository referred to above in accordance with the instructions of the
Company
referred to above. If a Registered Security is issued in exchange for
any portion of a global Security after the close of business at the Office
or
Agency for such Security where such exchange occurs on or after (i) any
Regular Record Date for such Security and before the opening of business
at such
Office or Agency on the next Interest Payment Date, or (ii) any Special
Record Date for such Security and before the opening of business at such
Office
or Agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect
of
such Registered Security, but shall be payable on such Interest Payment
Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such global Security shall be payable
in
accordance with the provisions of this Indenture.
All
Securities issued upon any
registration of transfer or exchange of Securities shall be the valid
obligations of the Company evidencing the same debt and entitling the Holders
thereof to the same benefits under this Indenture as the Securities surrendered
upon such registration of transfer or exchange.
Every
Registered Security presented or
surrendered for registration of transfer or for exchange or redemption
shall (if
so required by the Company or the Security Registrar for such Security)
be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar for such Security
duly
executed by the Holder thereof or his attorney duly authorized in
writing.
No
service charge shall be made for any
registration of transfer or exchange, or redemption of Securities, but
the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge and any other expenses (including fees and expenses
of the
Trustee) that may be imposed in connection with any registration of transfer
or
exchange of Securities, other than exchanges pursuant to Section 304, 905
or 1107, upon repayment in part of any Registered Security pursuant to
Article
Thirteen, or upon surrender in part of any Registered Security for conversion
or
exchange into Common Stock or other securities pursuant to its terms, in
each
case not involving any transfer.
Except
as otherwise provided in or
pursuant to this Indenture, the Company shall not be required (i) to issue,
register the transfer of or exchange any Securities during a period beginning
at
the opening of business 15 days before the day of the selection for redemption
of Securities of like tenor and the same series under Section 1103 and
ending at the close of business on the day of such selection, or (ii) to
register the transfer of or exchange any Registered Security so selected
for
redemption in whole or in part, except in the case of any Security to be
redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except, to the
extent
provided with respect to such Bearer Security, that such Bearer Security
may be
exchanged for a Registered Security of like tenor and the same series,
provided
that such Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of
this
Indenture or (iv) to issue, register the transfer of or exchange any
Security which, in accordance with its terms, has been surrendered for
repayment
at the option of the Holder, except the portion, if any, of such Security
not to
be so repaid.
Section
306. Mutilated,
Destroyed, Lost and Stolen Securities.
If
any mutilated Security or a Security
with a mutilated Coupon appertaining to it is surrendered to the Trustee,
subject to the provisions of this Section 306, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with Coupons
appertaining thereto corresponding to the Coupons, if any, appertaining
to the
surrendered Security.
If
there be delivered to the Company
and to the Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security or Coupon, and (ii) such security or
indemnity as may be required by them to save each of them and any agent
of
either of them harmless, then, in the absence of notice to the Company
or the
Trustee that such Security or Coupon has been acquired by a bona fide purchaser,
the Company shall execute and, upon the Company’s request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security or in exchange for the Security to which
a
destroyed, lost or stolen Coupon appertains with all appurtenant Coupons
not
destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons,
if
any, appertaining to such destroyed, lost or stolen Security or to the
Security
to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding
the foregoing
provisions of this Section 306, in case any mutilated, destroyed, lost or
stolen Security or Coupon 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 or Coupon; provided, however, that payment of principal of, any
premium
or interest on or any Additional Amounts with respect to any Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
Office or Agency for such Securities located outside the United States
and,
unless otherwise provided in or pursuant to this Indenture, any interest
on
Bearer Securities and any Additional Amounts with respect to such interest
shall
be payable only upon presentation and surrender of the Coupons appertaining
thereto.
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, with any Coupons
appertaining thereto issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen Coupon appertains shall constitute a separate obligation
of the
Company, whether or not the destroyed, lost or stolen Security and Coupons
appertaining thereto or the destroyed, lost or stolen Coupon 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 such
series and any Coupons, if any, duly issued hereunder.
The
provisions of this Section, as
amended or supplemented pursuant to this Indenture with respect to particular
Securities or generally, shall be 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 or Coupons.
Section
307. Payment of
Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved.
Unless
otherwise provided in pursuant
to this Indenture, any interest on and any Additional Amounts with respect
to
any Registered Security which shall be payable, and are punctually paid
or duly
provided for, on any Interest Payment Date shall be paid to the Person
in whose
name such Security (or one or more Predecessor Securities) is registered
as of
the close of business on the Regular Record Date for such
interest. Unless otherwise provided in or pursuant to this Indenture,
in case a Bearer Security is surrendered in exchange for a Registered Security
after the close of business at an Office or Agency for such Security on
any
Regular Record Date therefor and before the opening of business at such
Office
or Agency on the next succeeding Interest Payment Date therefor, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date and interest shall not be payable on such Interest Payment
Date in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
Unless
otherwise provided in or
pursuant to this Indenture, any interest on and any Additional Amounts
with
respect to any Registered Security which shall be payable, but shall not
be
punctually paid or duly provided for, on any Interest Payment Date for
such
Registered Security (herein called “Defaulted Interest”) shall forthwith cease
to be payable to the Holder thereof on the relevant Regular Record Date
by
virtue of having been such Holder; and such Defaulted Interest may be paid
by
the Company, at its election in each case, as provided in Clause (1) or
(2)
below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Person
in
whose name such Registered Security (or a Predecessor Security thereof)
shall be
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 such Registered 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 on or prior to the date of
the
proposed payment, such money when so deposited to be held in trust for
the
benefit of the Person entitled to such Defaulted Interest as in this Clause
provided. Thereupon, the Company shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and
not less than 10 days prior to the date of the proposed payment and not
less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment, which notice shall also specify to the Trustee such Special Record
Date. 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 such
Registered Security (or a Predecessor Security thereof) at his address
as it
appears in the Security Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name and at
the expense of the Company cause a similar notice to be published at least
once
in an Authorized Newspaper of general circulation in the Borough of Manhattan,
The City of New York, but such publication shall not be a condition precedent
to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Person in
whose name such Registered Security (or a Predecessor Security thereof)
shall be
registered at the close of business on such Special Record Date and shall
no
longer be payable pursuant to the following clause (2). In case
a Bearer Security is surrendered at the Office or Agency for such Security
in
exchange for a Registered Security after the close of business at such
Office or
Agency on any Special Record Date and before the opening of business at
such
Office or Agency on the related proposed date for payment of Defaulted
Interest,
such Bearer Security shall be surrendered without the Coupon relating to
such
Defaulted Interest and Defaulted Interest shall not be payable on such
proposed
date of payment in respect of the Registered Security issued in exchange
for
such Bearer Security, but shall be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture.
(2) The
Company may make payment of any Defaulted Interest in any other lawful
manner
not inconsistent with the requirements of any securities exchange or quotation
system on which such Security may be listed or quoted, and upon such notice
as
may be required by such exchange or quotation system, if, after notice
given by
the Company to the Trustee of the proposed payment pursuant to this Clause,
such
payment shall be deemed practicable by the Trustee.
Unless
otherwise provided in or
pursuant to this Indenture or the Securities of any particular series,
at the
option of the Company, interest on Registered Securities that bear interest
may
be paid by mailing a check to the address of the Person entitled thereto
as such
address shall appear in the Security Register or by transfer to an account
maintained by the payee with a bank located in the United States.
Subject
to the foregoing provisions of
this Section and Section 305, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to
accrue,
which were carried by such other Security.
Section
308. Persons
Deemed Owners.
Prior
to due presentment of a
Registered Security for registration of transfer, the Company, Guarantor,
the
Trustee and any agent of the Company, Guarantor or the Trustee may treat
the
Person in whose name such Registered Security is registered in the Security
Register as the owner of such Registered Security for the purpose of receiving
payment of principal of, any premium and (subject to Sections 305 and 307)
interest on and any Additional Amounts with respect to such Registered
Security
and for all other purposes whatsoever, whether or not any payment with
respect
to such Registered Security shall be overdue, and neither the Company,
Guarantor, the Trustee or any agent of the Company, Guarantor or the Trustee
shall be affected by notice to the contrary.
The
Company, Guarantor, the Trustee and
any agent of the Company, Guarantor or the Trustee may treat the bearer
of any
Bearer Security or the bearer of any Coupon as the absolute owner of such
Security or Coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not any payment
with
respect to such Security or Coupon shall be overdue, and neither the Company,
Guarantor, the Trustee or any agent of the Company, Guarantor or the Trustee
shall be affected by notice to the contrary.
No
holder of any beneficial interest in
any global Security held on its behalf by or on behalf of a Depository
shall
have any rights under this Indenture with respect to such global Security,
and
such Depository may be treated by the Company, Guarantor, the Trustee,
and any
agent of the Company, Guarantor or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, Guarantor,
the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any acts or omissions of the Depository,
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,
or for
any other aspect of the relationship, including transfers of beneficial
interests in a global Security, between the Depository and its participants
or
indirect participants, or the relationship between such participants or
indirect
participants of the Depository and any holder of any beneficial interests
in any
global Security held on its behalf by such participants or indirect
participants.
Section
309. Cancellation.
All
Securities and Coupons surrendered
for payment, redemption, registration of transfer, exchange or conversion
or for
credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Securities
and
Coupons, as well as Securities and Coupons surrendered directly to the
Trustee
for any such purpose, shall be cancelled promptly by the Trustee. 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
cancelled promptly by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided
in this Section, except as expressly permitted by or pursuant to this
Indenture. All cancelled Securities and Coupons held by the Trustee
shall be voided and disposed of by the Trustee in accordance with its then
customary procedures and, upon the Company’s request, certification of their
voidance and disposal shall be delivered to the Company, unless by a Company
Order the Company directs their return to it.
Section
310. Computation
of Interest.
Except
as otherwise provided in or
pursuant to this Indenture or in the Securities of any series, interest
on the
Securities shall be computed on the basis of a 360-day year of twelve 30-day
months.
SATISFACTION
AND DISCHARGE
Section
401. Satisfaction
and Discharge.
Upon
the direction of the Company by a
Company Order, this Indenture and any applicable Guarantee shall cease
to be of
further effect with respect to any series of Securities specified in such
Company Order and any Coupons appertaining thereto, and the Trustee, on
receipt
of a Company Order, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture
and the
Guarantee as to such series, when
(1) either
(a) all
Securities of such series theretofore authenticated and delivered and all
Coupons appertaining thereto (other than (i) Coupons appertaining to Bearer
Securities of such series surrendered in exchange for Registered Securities
of
such series and maturing after such exchange whose surrender is not required
or
has been waived as provided in Section 305, (ii) Securities and
Coupons of such series which have been destroyed, lost or stolen and which
have
been replaced or paid as provided in Section 306, (iii) Coupons
appertaining to Securities of such series called for redemption and maturing
after the relevant Redemption Date whose surrender has been waived as provided
in Section 1106, and (iv) Securities and Coupons 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 for cancellation; or
(b) all
Securities of such series and, in the case of (i) or (ii) below, any Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) if
redeemable at the option of the Company, are to be called for redemption
within
one year under arrangements satisfactory to the Trustee for the giving
of notice
of redemption by the Trustee in the name, and at the expense, of the
Company,
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 such purpose, money
in
the Currency in which such Securities are payable in an amount sufficient
to pay
and discharge the entire indebtedness on such Securities and any Coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation,
including the principal of, any premium and interest on, and, to the extent
that
the Securities of such series provide for the payment of Additional Amounts
thereon and the amount of any such Additional Amounts is at the time of
deposit
reasonably determinable by the Company (in the exercise by the Company
of its
sole and absolute discretion), any Additional Amounts with respect to,
such
Securities and any Coupons appertaining thereto, to the date of such deposit
(in
the case of Securities, which have become due and payable) or to the Maturity
thereof, 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 Outstanding Securities of such series and any
Coupons appertaining thereto; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating
to the satisfaction and discharge of this Indenture as to such series have
been
complied with.
In
the event there are Securities of
two or more series hereunder, the Trustee shall be required to execute
an
instrument acknowledging satisfaction and discharge of this Indenture (including
any applicable Guarantee) only if requested to do so with respect to Securities
of such series as to which it is Trustee and if the other conditions thereto
are
met.
Notwithstanding
the satisfaction and
discharge of this Indenture (including any applicable Guarantee) with respect
to
any series of Securities, the obligations of the Company to the Trustee
under
Section 607 and, if money shall have been deposited with the Trustee
pursuant to subclause (b) of clause (1) of this Section, the obligations
of the
Trustee under Sections 305, 306, 403 and the last paragraph of Section 1003
shall survive.
Section
402. Defeasance
and Covenant Defeasance.
(1) Unless,
pursuant to Section 301, either or both of (i) defeasance of the
Securities of or within a series under clause (2) of this Section 402 or
(ii) covenant defeasance of the Securities of or within a series under
clause (3) of this Section 402 shall not be applicable with respect to the
Securities of such series, then such provisions, together with the other
provisions of this Section 402 (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any Coupons appertaining thereto, and
the
Company may at its option by Board Resolution, at any time, with respect
to such
Securities and any Coupons appertaining thereto, elect to have
Section 402(2) or Section 402(3) be applied to such Outstanding
Securities and any Coupons appertaining thereto upon compliance with the
conditions set forth below in this Section 402.
(2) Upon
the Company’s exercise of the above option applicable to this
Section 402(2) with respect to any Securities of or within a series, the
Company (and Guarantor, as the case may be) shall be deemed to have been
discharged from their respective obligations with respect to such Outstanding
Securities and any Coupons appertaining thereto on the date the conditions
set
forth in clause (4) of this Section 402 are satisfied (hereinafter,
“defeasance”). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any Coupons appertaining
thereto,
which shall thereafter be deemed to be “Outstanding” only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture
referred to in clauses (i) and (ii) below, and to have satisfied all of
its and
Guarantor’s (if applicable) other obligations under such Securities and any
Coupons appertaining thereto and this Indenture and any applicable Guarantee
insofar as such Securities and any Coupons appertaining thereto are concerned
(and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following obligations
of the
Company which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding
Securities and any Coupons appertaining thereto to receive, solely from
the
trust fund described in clause (4) of this Section 402 and as more fully
set forth in such Section, payments in respect of the principal of (and
premium,
if any) and interest, if any, on, and Additional Amounts, if any, with
respect
to, such Securities and any Coupons appertaining thereto when such payments
are
due, and any rights of such Holder to convert or exchange such Securities
into
Common Stock or other securities, (ii) the obligations of the Company and
the Trustee with respect to such Securities under Sections 305, 306, 1002
and
1003, with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to
Section 401(4)(a) below), and with respect to any rights to convert or
exchange such Securities into Common Stock or other securities, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv)
this Section 402. The Company may exercise its option under this
Section 402(2) notwithstanding the prior exercise of its option under
clause (3) of this Section 402 with respect to such Securities and any
Coupons appertaining thereto. Following a defeasance, payment of the
Securities of such series may not be accelerated because of an Event of
Default.
(3) Upon
the Company’s exercise of the above option applicable to this
Section 402(3) with respect to any Securities of or within a series, the
Company (and Guarantor, as the case may be) shall be released from their
respective obligations, if any, under Sections 801, 1006 and any other
covenants
applicable to such Securities that are determined pursuant to Section 301
to be subject to this provision with respect to such Outstanding Securities
and
any Coupons appertaining thereto on and after the date the conditions set
forth
in clause (4) of this Section 402 are satisfied (hereinafter, “covenant
defeasance”), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not “Outstanding” for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences
of any
thereof) in connection with any such covenant, but shall continue to be
deemed
“Outstanding” for all other purposes hereunder. For this purpose,
such covenant defeasance means that, with respect to such Outstanding Securities
and any Coupons appertaining thereto, the Company may omit to comply with,
and
shall have no liability in respect of, any term, condition or limitation
set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section
or
such other covenant or by reason of reference in any such Section or such
other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default
under
Section 501(4) or 501(7) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and
Coupons
appertaining thereto shall be unaffected thereby.
(4) The
following shall be the conditions to application of clause (2) or (3) of
this
Section 402 to any Outstanding Securities of or within a series and any
Coupons appertaining thereto:
(a) The
Company shall irrevocably have deposited or caused to be deposited with
the
Trustee (or another trustee satisfying the requirements of Section 608 who
shall agree to comply with the provisions of this Section 402 applicable to
it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit
of
the Holders of such Securities and any Coupons appertaining thereto,
(1) money in an amount in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then specified as payable
at
Stated Maturity, or (2) Government Obligations applicable to such
Securities and Coupons appertaining thereto (determined on the basis of
the
Currency in which such Securities and Coupons appertaining thereto are
then
specified as payable at Stated Maturity) which through the scheduled payment
of
principal and interest in respect thereof in accordance with their terms
will
provide, not later than one day before the due date of any payment of principal
of (and premium, if any) and interest, if any, on such Securities and any
Coupons appertaining thereto, money in an amount, or (3) a combination
thereof in an amount, in each case, sufficient, without consideration of
any
reinvestment of such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (y) the principal of (and premium, if any) and interest, if
any, on,
and, to the extent that such Securities provide for the payment of Additional
Amounts thereon and the amount of any such Additional Amounts is at the
time of
deposit reasonably determinable by the Company (in the exercise by the
Company
of its sole and absolute discretion), any Additional Amounts with respect
to,
such Outstanding Securities and any Coupons appertaining thereto on the
Stated
Maturity of such principal or installment of principal or interest and
(z) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any Coupons appertaining thereto on the day
on which
such payments are due and payable in accordance with the terms of this
Indenture
and of such Securities and any Coupons appertaining thereto.
(b) Such
defeasance or covenant defeasance shall not result in a breach or violation
of,
or constitute a default under, this Indenture or any other material agreement
or
instrument to which the Company is a party or by which it is bound.
(c) No
Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to such Securities and any Coupons
appertaining thereto shall have occurred and be continuing (A) on the date
of such deposit or (B) in so far as subsections 501(5) and (6) are
concerned, at any time during the period ending on the 123rd day after
the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) Such
defeasance or covenant defeasance shall not (A) cause the Trustee for the
Securities of such series to have a conflicting interest for purposes of
the
Trust Indenture Act with respect to any securities of the Company or
(B) result in the trust arising from such deposit to constitute, unless it
is qualified as, a regulated investment company under the Investment Company
Act
of 1940, as amended.
(e) The
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect
that the Holders of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes
as a result of such defeasance or covenant defeasance, as the case may
be, and
will be subject to Federal income tax on the same amounts, in the same
manner
and at the same times as would have been the case if such defeasance or
covenant
defeasance, as the case may be, had not occurred; provided that in the
case of
defeasance, the Opinion of Counsel to be delivered to the Trustee must
state
with respect to its opinion as described above that such opinion was based
on
either (A) the Company having received from, or there having been published
by, the Internal Revenue Service a ruling, or (B) there having been a
change in the applicable Federal income tax laws, since the date of this
Indenture.
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance
or covenant defeasance under clause (2) or (3) of this Section 402 (as the
case may be) have been complied with.
(g) Notwithstanding
any other provisions of this Section 402(4), such defeasance or covenant
defeasance shall be effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the Company in
connection therewith pursuant to Section 301.
(5) Subject
to the provisions of the last paragraph of Section 1003, all money and
Government Obligations (or other property as may be provided pursuant to
Section 301) (including the proceeds thereof) deposited with the Trustee
(or other qualifying trustee, collectively for purposes of this
Section 402(5) and Section 403, the “Trustee”) pursuant to clause (4)
of Section 402 in respect of any Outstanding Securities of any series and
any Coupons appertaining thereto shall be held in trust and applied by
the
Trustee, in accordance with the provisions of such Securities and any Coupons
appertaining thereto and this Indenture, to the payment, either directly
or
through any Paying Agent (including the Company acting as its own Paying
Agent)
as the Trustee may determine, to the Holders of such Securities and any
Coupons
appertaining thereto of all sums due and to become due thereon in respect
of
principal (and premium, if any) and interest and Additional Amounts, if
any, but
such money need not be segregated from other funds except to the extent
required
by law.
Unless
otherwise specified in or
pursuant to this Indenture or any Securities, if, after a deposit referred
to in
Section 402(4)(a) has been made, (a) the Holder of a Security in
respect of which such deposit was made is entitled to, and does, elect
pursuant
to Section 301 or the terms of such Security to receive payment in a
Currency other than that in which the deposit pursuant to Section 402(4)(a)
has been made in respect of such Security, or (b) a Conversion Event occurs
in respect of the Foreign Currency in which the deposit pursuant to
Section 402(4)(a) has been made, the indebtedness represented by such
Security and any Coupons appertaining thereto shall be deemed to have been,
and
will be, fully discharged and satisfied through the payment of the principal
of
(and premium, if any), and interest, if any, on, and Additional Amounts,
if any,
with respect to, such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case
of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a
result of
such election or Conversion Event based on (x) in the case of payments
made
pursuant to clause (a) above, the applicable market exchange rate for such
Currency in effect on the second Business Day prior to each payment date,
or (y)
with respect to a Conversion Event, the applicable market exchange rate
for such
Foreign Currency in effect (as nearly as feasible) at the time of the Conversion
Event.
The
Company shall pay and indemnify the
Trustee against any tax, fee or other charge, imposed on or assessed against
the
Government Obligations deposited pursuant to this Section 402 or the
principal or interest received in respect thereof other than any such tax,
fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything
in this Section 402 to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or Government Obligations
(or
other property and any proceeds therefrom) held by it as provided in clause
(4)
of this Section 402 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof
delivered to the Trustee, are in excess of the amount thereof which would
then
be required to be deposited to effect a defeasance or covenant defeasance,
as
applicable, in accordance with this Section 402.
Section
403. Application
of Trust Money.
Subject
to the provisions of the last
paragraph of Section 1003, all money and Government Obligations deposited
with the Trustee pursuant to Section 401 or 402 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the
Coupons
and this Indenture, to the payment, either directly or through any Paying
Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, premium,
interest
and Additional Amounts for whose payment such money has or Government
Obligations have been deposited with or received by the Trustee; but such
money
and Government Obligations need not be segregated from other funds except
to the
extent required by law.
REMEDIES
Section
501. Events of
Default.
“Event
of Default”, wherever used
herein with respect to Securities of any series, means 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 specifically
deleted
or modified in or pursuant to the supplemental indenture, Board Resolution
or
Officers’ Certificate establishing the terms of such Series pursuant to this
Indenture:
(1) default
in the payment of any interest on, or any Additional Amounts payable in
respect
of any interest on, any Security of such series when such interest or such
Additional Amounts, as the case may be, become 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, or any Additional
Amounts payable in respect of the principal of or premium, if any, on,
any
Security of such series when due upon Maturity (whether upon redemption
or
otherwise); or
(3) default
in the payment of any sinking fund payment, or analogous provision, when
and as
due by the terms of a Security of such series; or
(4) default
in the performance, or breach, of any covenant or warranty of the Company
in
this Indenture or any Security of such series (other than a covenant or
warranty
for which the consequences of breach or nonperformance are addressed elsewhere
in this Section 501 or in the Securities or in a covenant or warranty which
has expressly been included in this Indenture or a Security of that series,
whether or not by means of a supplemental indenture, solely for the benefit
of
Securities of a series other than such series), and continuance of such
default
or breach for a period of 90 days after there has been given, by registered
or
certified mail, to the Company by the Trustee or to the Company and the
Trustee
by the Holders of at least 25% in 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
Company or Guarantor (if the Securities of such series are subject to a
Guarantee) pursuant to or under or within the meaning of any Bankruptcy
Law:
(a) commences
a voluntary case or proceeding;
(b) consents
to the entry of an order for relief against it in an involuntary case or
proceeding or the commencement of any case against it;
(c) consents
to the appointment of a Custodian of it or for any substantial part of
its
property;
(d) makes
a general assignment for the benefit of its creditors;
(e) files
a petition in bankruptcy or answer or consent seeking reorganization or
relief;
or
(f) consents
to the filing of such petition or the appointment of or taking possession
by a
Custodian; or
(6) a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(a) is
for relief against the Company or Guarantor (if the Securities of such
series
are subject to a Guarantee) in an involuntary case or proceeding, or adjudicates
the Company or Guarantor insolvent or bankrupt;
(b) appoints
a Custodian of the Company or Guarantor (if the Securities of such series
are
subject to a Guarantee), or for any substantial part of its property;
or
(c) orders
the winding up or liquidation of the Company or Guarantor (if the Securities
of
such series are subject to a Guarantee);
and
the
order or decree remains unstayed and in effect for 90 days; or
(7) any
other Event of Default provided in or pursuant to this Indenture with respect
to
Securities of such series.
“Bankruptcy
Law” means Title 11, United
States Code, or any similar Federal or state law for the relief of
debtors.
Section
502. Acceleration
of Maturity; Rescission and Annulment.
If
an Event of Default with respect to
Securities of any series at the time Outstanding occurs and is continuing,
then
the Trustee or the Holders of not less than 25% in principal amount of
the
Outstanding Securities of such series may declare the principal of all
the
Securities of such series, or such lesser amount as may be provided for
in the
Securities of such series, to be due and payable immediately, by a notice
in
writing to the Company (and to the Trustee if given by the Holders), and
upon
any such declaration such principal or such lesser amount shall become
immediately due and payable.
At
any time after Securities of any
series have been accelerated 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 not less than 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 or caused to be paid or deposited with the
Trustee
a sum of money sufficient to pay
(a) all
overdue installments of any interest on any Securities of such series and
any
Coupons appertaining thereto and any Additional Amounts with respect
thereto,
(b) the
principal of and any premium on any Securities of such series which have
become
due otherwise than by such declaration of acceleration and any Additional
Amounts with respect thereto and, to the extent the payment of such interest
is
lawful, interest thereon at the rate or rates borne by or provided for
in such
Securities,
(c) to
the extent that payment of such interest is lawful, interest upon overdue
installments of any interest and any Additional Amounts with respect thereto
at
the rate or rates borne by or provided for in such Securities, 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 Securities of such series, other than
the
non-payment of the principal of, any premium and interest on, and any Additional
Amounts with respect to Securities of such series which shall have become
due
solely by such declaration of acceleration, shall 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 or any Additional
Amounts with respect to any Security or any Coupon appertaining thereto
when
such interest or Additional Amounts shall have become due and payable and
such
default continues for a period of 30 days, or
(2) default
is made in the payment of the principal of or any premium on any Security
at its
Maturity, the Company shall, upon demand of the Trustee, pay to the Trustee,
for
the benefit of the Holders of such Securities and any Coupons appertaining
thereto,
the
whole
amount of money then due and payable with respect to such Securities and
any
Coupons appertaining thereto, with interest upon the overdue principal,
any
premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts
at
the rate or rates borne by or provided for in such Securities, and, in
addition
thereto, such further amount of money 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 to the Trustee under Section 607.
If
the Company fails to pay the money
it is required to pay the Trustee pursuant to the preceding paragraph forthwith
upon the demand of the Trustee, the Trustee, in its own name and as trustee
of
an express trust, may institute a judicial proceeding for the collection
of the
money so due and unpaid, and may prosecute such proceeding to judgment
or final
decree, and may enforce the same against the Company and collect the monies
adjudged or decreed to be payable in the manner provided by law out of
the
property of the Company, wherever situated.
If
an Event of Default with respect to
Securities of any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of
the
Holders of Securities of such series and any Coupons appertaining thereto
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 such Securities or in aid
of the
exercise of any power granted herein or therein, 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
the property of the Company or its 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 any overdue
principal, premium, interest or Additional Amounts) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(1) to
file and prove a claim for the whole amount, or such lesser amount as may
be
provided for in the Securities of such series, of the principal and any
premium,
interest and Additional Amounts owing and unpaid in respect of the Securities
and any Coupons appertaining thereto and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents or counsel) and of the Holders
of
Securities or any Coupons allowed in such judicial proceeding, and
(2) to
collect and receive any monies or other property payable or deliverable
on any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by
each
Holder of Securities or any Coupons to make such payments to the Trustee
and, in
the event that the Trustee shall consent to the making of such payments
directly
to the Holders of Securities or any Coupons, 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 Holder of a Security or any Coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or Coupons
or
the rights of any Holder thereof, or to authorize the Trustee to vote in
respect
of the claim of any Holder of a Security or any Coupon in any such
proceeding.
Section
505. Trustee may
Enforce Claims Without Possession of Securities or Coupons.
All
rights of action and claims under
this Indenture or any of the Securities or Coupons may be prosecuted and
enforced by the Trustee without the possession of any of the Securities
or
Coupons 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 or judgment, after provision
for
the payment of the reasonable compensation, expenses, disbursements and
advances
of the Trustee, its agents and counsel, shall be for the ratable benefit
of each
and every Holder of a Security or Coupon in respect of which such judgment
has
been recovered.
Section
506. Application
of Money Collected.
Any
money collected by the Trustee
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 any premium, interest or Additional Amounts, upon
presentation of the Securities or Coupons, or both, as the case may be,
and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To
the payment of all
amounts due the Trustee and any predecessor Trustee under
Section 607;
SECOND: To
the payment of
the amounts then due and unpaid upon the Securities and any Coupons for
principal and any premium, interest and Additional Amounts 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 aggregate amounts
due and
payable on such Securities and Coupons for principal and any premium, interest
and Additional Amounts, respectively;
THIRD: The
balance, if any,
to the Person or Persons entitled thereto.
Section
507. Limitations
on Suits.
No
Holder of any Security of any series
or any Coupons appertaining thereto 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 the 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 indemnity or security reasonably
satisfactory to the Trustee 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 of such Holders shall have
any right
in any manner whatever by virtue of, or by availing of, any provision of
this
Indenture or any Security to affect, disturb or prejudice the rights of
any
other such Holders or Holders of Securities of any other series, or to
obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and
for the
equal and ratable benefit of all such Holders.
Section
508. Unconditional
Right of Holders to Receive Principal and Any Premium, Interest and Additional
Amounts.
Notwithstanding
any other provision in
this Indenture, the Holder of any Security or Coupon shall have the right,
which
is absolute and unconditional, to receive payment of the principal of,
any
premium and (subject to Sections 305 and 307) interest on, and any Additional
Amounts with respect to such Security or such Coupon, as the case may be,
on the
respective Stated Maturity or Maturities therefor specified in such Security
or
Coupon (or, in the case of redemption, on the Redemption Date or, in the
case of
repayment at the option of such Holder if provided in or pursuant to this
Indenture, on the date such repayment is due) 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 Holder of a
Security or a Coupon has instituted any proceeding to enforce any right
or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee
or to
such Holder, then and in every such case the Company, Guarantor, the Trustee
and
each such Holder 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 each such Holder
shall
continue as though no such proceeding had been instituted.
Section
510. Rights and
Remedies Cumulative.
Except
as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen
Securities or Coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to each and
every
Holder of a Security or a Coupon is intended to be exclusive of any other
right
or remedy, and every right and remedy, to the extent permitted by law,
shall 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, to
the
extent permitted by law, 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 or Coupon 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 any
Holder
of a Security or a Coupon may be exercised from time to time, and as often
as
may be deemed expedient, by the Trustee or by such ▇▇▇▇▇▇, as the case
may
be.
Section
512. Control by
Holders of Securities.
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 and any Coupons
appertaining thereto, provided that
(1) such
direction shall not be in conflict with any rule of law or with this Indenture
or with the Securities of any series and shall not subject the Trustee
to any
personal liability,
(2) the
Trustee may take any other action deemed proper by the Trustee which is
not
inconsistent with such direction, and
(3) such
direction is not unduly prejudicial to the rights of the other Holders
of
Securities of such series not joining in such action.
Section
513. Waiver of
Past Defaults.
The
Holders of not less than a majority
in principal amount of the Outstanding Securities of any series on behalf
of the
Holders of all the Securities of such series and any Coupons appertaining
thereto may waive any past default hereunder with respect to such series
and its
consequences, except a default
(1) in
the payment of the principal of, any premium or interest on, or any Additional
Amounts with respect to, any Security of such series or any Coupons appertaining
thereto, 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 affected.
Upon
any such waiver, such default
shall cease to exist, and any Event of Default arising therefrom shall
be deemed
to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Section
514. Waiver of
Stay or Extension Laws.
The
Company covenants that (to the
extent that it may lawfully do so) it will not at any time insist upon,
or
plead, or in any manner whatsoever claim or take the benefit or advantage
of,
any stay or extension law wherever enacted, now or at any time hereafter
in
force, which may affect the covenants or the performance of this Indenture;
and
the Company expressly waives (to the extent that it may lawfully do so)
all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee,
but
will suffer and permit the execution of every such power as though no such
law
had been enacted.
Section
515. 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 any 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; provided, that the provisions of this Section 515 shall not apply
to any suit instituted by the Trustee, to any suit instituted by any Holder,
or
group of Holders, holding in the aggregate more than 10% in principal amount
of
Outstanding Securities of any series, or to any suit instituted by any
Holder
for the enforcement of the payment of the principal of (or premium, if
any) or
interest, if any, on or Additional Amounts, if any, with respect to any
Security, on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date,
and,
in the case of repayment, on or after the date for repayment) or for the
enforcement of the right, if any, to convert or exchange any Security into
Common Stock or other securities in accordance with its terms.
THE
TRUSTEE
Section
601. Certain
Duties and Responsibilities.
(a) With
respect to the Securities of any series, except during the continuance
of an
Event of Default with respect to the Securities of such series,
(1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(2) in
the absence of bad faith on its part, the Trustee may conclusively rely,
as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any such certificates
or opinions which by any provision hereof are specifically required to
be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same
to determine whether or not they conform to the requirements of this
Indenture.
(b) In
case an Event of Default with respect to the Securities of any series
has
occurred and is continuing, the Trustee shall, with respect to the Securities
of
such series, exercise 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) or
(d) 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
(d) no
provision of this Indenture shall require the Trustee to expend or risk
its own
funds or otherwise incur any financial liability in the performance of
any of
its duties hereunder, or in the exercise of any of its rights or powers,
if it
shall have reasonable grounds for believing that repayment of such funds
or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
(e) Whether
or not therein expressly so provided, every provision of this Indenture
relating
to the conduct or affecting the liability of or affording protection
to the
Trustee shall be subject to the provisions of this Section.
Section
602. Certain
Rights of Trustee.
Subject
to Section 601:
(1) the
Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion,
report, notice, request, direction, consent, order, bond, debenture,
note,
coupon or other paper or document reasonably believed by it to be genuine
and to
have been signed or presented by the proper party or parties;
(2) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or a Company Order (in each case, other
than
delivery of any Security, together with any Coupons appertaining thereto,
to the
Trustee for authentication and delivery pursuant to Section 303 which shall
be sufficiently evidenced as provided therein) and any resolution of
the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(3) 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 shall be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers’ Certificate;
(4) 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;
(5) the
Trustee shall be under no obligation to exercise any of the rights or
powers
vested in it by or pursuant to this Indenture at the request or direction
of any
of the Holders of Securities of any series or any Coupons appertaining
thereto
pursuant to this Indenture, unless such Holders shall have offered to
the
Trustee security or indemnity reasonably satisfactory to it against the
costs,
expenses and liabilities which might be incurred by it in compliance
with such
request or direction;
(6) 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, coupon or
other
paper or document, but the Trustee, in its discretion, may make such
further
inquiry or investigation into such facts or matters as it may see fit,
and, if
the Trustee shall determine to make such further inquiry or investigation,
it
shall be entitled to examine, during business hours and upon reasonable
notice,
the books, records and premises of the Company, personally or by agent
or
attorney; and
(7) 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;
(8) the
rights, privileges, protections, immunities and benefits given to the
Trustee
under this Indenture, including, without limitation, its right to be
indemnified, are hereby extended and made applicable to, and shall be
enforceable by the Trustee in each of its capacities under this
Indenture;
(9) the
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at
such time
to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate; and
(10) the
Trustee shall not be charged with knowledge of any default (as defined
in
Section 603) or Event of Default with respect to the Securities of any
series for which it is acting as Trustee unless either (1) a Responsible
Officer of the Trustee shall have actual knowledge that such default
or Event of
Default, as the case may be, exists and constitutes a default or Event
of
Default, as the case may be, under this Indenture, or (2) written notice of
such default or Event of Default shall have been given in the manner
provided in
Section 105 hereof to the Trustee by the Company or Guarantor (if the
applicable Securities are subject to a Guarantee) on such Securities
or by the
requisite percentage of Holders of such Securities and such notice references
the applicable Securities and this Indenture.
Section
603. Notice of
Defaults.
Within
90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the
Trustee
shall transmit by mail to all Holders of Securities of such series entitled
to
receive reports pursuant to Section 703(3), 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, if any, on, or
Additional
Amounts or any sinking fund or purchase fund installment with respect
to, any
Security 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 best interest
of
the Holders of Securities and Coupons 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
Holders shall be given until at least 30 days after the occurrence thereof.
For
the purpose of this Section, the term “default” means any event 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
604. Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and, in
the Securities, except the Trustee’s certificate of authentication, and in any
Coupons shall be taken as the statements of the Company and neither the
Trustee
nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or any Guarantee or of the Securities
or the
Coupons, except that the Trustee represents that it is duly authorized
to
execute and deliver this Indenture, authenticate the Securities and perform
its
obligations hereunder and that the statements made by it in a Statement
of
Eligibility and Qualification on Form T-1 supplied to the Company are
true and
accurate, subject to the qualifications set forth therein. Neither the
Trustee
nor any Authenticating Agent shall be accountable for the use or application
by
the Company of the Securities or the proceeds thereof.
Section
605. May Hold
Securities.
The
Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other Person that may
be an
agent of the Trustee, Guarantor or the Company, in its individual or
any other
capacity, may become the owner or pledgee of Securities or Coupons and,
subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise
deal with
the Company or Guarantor with the same rights it would have if it were
not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other
Person.
Section
606. Money Held
in Trust.
Except
as provided in Section 403
and Section 1003, money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law and
shall be
held uninvested. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed in writing
with
the Company.
Section
607. Compensation
and Reimbursement.
The
Company agrees:
(1) to
pay to the Trustee from time to time reasonable compensation for all
services
rendered by the Trustee 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 the Trustee’s negligence or bad faith; and
(3) to
indemnify the Trustee and its counsel and agents for, and to hold them
harmless
against, any loss, damages, claims, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the
acceptance or administration of the trust or trusts hereunder, including
the
costs and expenses of defending themselves against any claim (whether
asserted
by the Company, or any Holder or any other Person) or liability in connection
with the exercise or performance of any of their powers or duties hereunder
or
in connection with enforcing the provisions of this Section.
Under
no
circumstances shall the Trustee be held liable for consequential or punitive
damages of any kind.
As
security for the performance of the
obligations of the Company under this Section, the Trustee shall have
a lien
prior to the Securities of any series 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 or interest on or any Additional Amounts with
respect
to Securities or any Coupons appertaining thereto.
In
addition and without prejudice to
the rights provided to the Trustee under any of the provisions of this
Indenture, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or
Section 501(6), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to
constitute
expenses of administration under any applicable bankruptcy, insolvency
or other
similar law.
The
Company’s obligations under this
Section 607 and the lien referred to in this Section 607 shall survive
the resignation or removal of the Trustee, the discharge of the Company’s
obligations under Article Four of this Indenture and/or the termination
of this
Indenture. “Trustee” for purposes of this Section 607 shall
include any predecessor Trustee but the negligence or bad faith of any
Trustee
shall not affect the rights of any other Trustee under this
Section 607.
Section
608. Corporate
Trustee Required; Eligibility.
There
shall at all times be a Trustee
hereunder that is a Corporation organized and doing business under the
laws of
the United States of America, any state thereof or the District of Columbia,
eligible under Section 310(a)(1) of the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act and
that has
a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000
subject to supervision or examination by Federal or state
authority. If at any time the Trustee shall cease to be eligible in,
accordance with the provisions of this Section, it shall resign immediately
in
the manner and with the effect hereinafter specified in this
Article.
Section
609. Resignation
and Removal; Appointment of Successor.
(1) 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 pursuant to Section 610.
(2) The
Trustee may resign at any time with respect to the Securities of one
or more
series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 610
shall not have been delivered to the Trustee within 30 days after the
giving of
such notice of resignation, the resigning Trustee or the removed Trustee,
as the
case may be, may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(3) The
Trustee may be removed at any time with respect to the Securities of
any series
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and the
Company.
(4) If
at any time:
(a) the
Trustee shall fail to comply with the obligations imposed upon it under
Section 310(b) of the Trust Indenture Act with respect to Securities of any
series after written request therefor by the Company or any Holder of
a Security
of such series who has been a bona fide Holder of a Security of such
series for
at least six months, or
(b) the
Trustee shall cease to be eligible under Section 608 and shall fail to
resign after written request therefor by the Company or any such Holder,
or
(c) the
Trustee shall become incapable of acting or 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 or pursuant to a Board Resolution, may
remove the Trustee with respect to all Securities or the Securities of
such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act,
any Holder of a Security who has been a bona fide Holder of a Security
of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the removal
of the Trustee with respect to all Securities of such series and the
appointment
of a successor Trustee or Trustees.
(5) If
the Trustee shall resign, be removed or become incapable of acting, or
if a
vacancy shall occur in the office of Trustee for any cause, with respect
to the
Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect
to the Securities of that or those series (it being understood that any
such
successor Trustee may be appointed with respect to the Securities of
one or more
or all of such series and that at any time there shall be only one Trustee
with
respect to the Securities of any particular series) and shall comply
with the
applicable requirements of Section 610. If, within one year
after such resignation, removal or incapability, or the occurrence of
such
vacancy, a successor Trustee with respect to the Securities of any series
shall
be appointed by Act of the Holders of a majority in principal amount
of the
Outstanding Securities of such series delivered to the Company and the
retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance
of such appointment in accordance with the applicable requirements of
Section 610, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed
by the
Company. If no successor Trustee with respect to the Securities of any
series
shall have been so appointed by the Company or the Holders of Securities
and
accepted appointment in the manner required by Section 610, any Holder of a
Security who has been a bona fide Holder of a Security of such series
for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor
Trustee with respect to the Securities of such series.
(6) The
Company shall give notice of each resignation and each removal of the
Trustee
with respect to the Securities of any series and each appointment of
a successor
Trustee with respect to the Securities of any series by mailing written
notice
of such event by first-class mail, postage prepaid, to the Holders of
Registered
Securities, if any, of such series as their names and addresses appear
in the
Security Register and, if Securities of such series are issued as Bearer
Securities, by publishing notice of such event once in an Authorized
Newspaper
in each Place of Payment located outside the United States. Each notice
shall
include the name of the successor Trustee with respect to the Securities
of such
series and the address of its Corporate Trust Office.
Section
610. Acceptance
of Appointment by Successor.
(1) Upon
the appointment hereunder of any successor Trustee with respect to all
Securities, such successor Trustee so appointed shall execute, acknowledge
and
deliver to the Company and the retiring Trustee an instrument accepting
such
appointment, and thereupon the resignation or removal of the retiring
Trustee
shall become effective and such successor Trustee, without any further
act, deed
or conveyance, shall become vested with all the rights, powers, trusts
and
duties hereunder of the retiring Trustee; but, on the request of the
Company or
such successor Trustee, such retiring Trustee, upon payment of its charges,
shall execute and deliver an instrument transferring to such successor
Trustee
all the rights, powers and trusts of the retiring Trustee and, subject
to
Section 1003, shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder,
subject
nevertheless to its lien, if any, provided for in Section 607.
(2) Upon
the appointment hereunder of any successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and such successor Trustee shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment
and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor
Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect
to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (b) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be
deemed
necessary or desirable to confirm that all the rights, powers, trusts
arid
duties of the retiring Trustee with respect to the Securities of that
or those
series as to which the retiring Trustee is not retiring shall continue
to be
vested in the retiring Trustee, and (c) 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, that each such
Trustee
shall be trustee of a trust or trusts hereunder separate and apart from
any
trust or trusts hereunder administered by any other such Trustee and
that no
Trustee shall be responsible for any notice given to, or received by,
or any act
or failure to act on the part of any other Trustee hereunder, and, upon
the
execution and delivery of such supplemental indenture, the resignation
or
removal of the retiring Trustee shall become effective to the extent
provided
therein, such retiring Trustee shall have no further responsibility for
the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to
the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall
become
vested with all the rights, powers, trusts and duties of the retiring
Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or
such
successor Trustee, such retiring Trustee, upon payment of its charges
with
respect to the Securities of that or those series to which the appointment
of
such successor relates and subject to Section 1003 shall duly assign,
transfer and deliver to such successor Trustee, to the extent contemplated
by
such supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series
to
which the appointment of such successor Trustee relates, subject to its
claim,
if any, provided for in Section 607.
(3) Upon
request of any Person appointed hereunder as a successor Trustee, the
Company
shall execute any and all instruments for more fully and certainly vesting
in
and confirming to such successor Trustee all such rights, powers and
trusts
referred to in paragraph (1) or (2) of this Section, as the case may
be.
(4) No
Person shall accept its appointment hereunder as a successor Trustee
unless at
the time of such acceptance such successor Person shall be qualified
and
eligible under this Article.
Section
611. Merger,
Conversion, Consolidation or Succession to Business.
Any
Person into which the Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any Person succeeding to all or substantially all
of the
corporate trust business of the Trustee, shall be the successor of the
Trustee
hereunder, provided such Person shall otherwise be eligible under
Section 608, 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
612. Appointment
of Authenticating Agent.
The
Trustee may appoint one or more
Authenticating Agents acceptable to the Company with respect to one or
more
series of Securities which shall be authorized to act on behalf of the
Trustee
to authenticate Securities of that or those series issued upon original
issue,
exchange, registration of transfer, partial redemption or partial repayment,
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, except as provided in or pursuant to this
Indenture, shall at all times be a Corporation that would be permitted
by the
Trust Indenture Act to act as trustee under an indenture qualified under
the
Trust Indenture Act (including pursuant to Section 310(a)(1) thereof), is
authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance
with
Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, it shall
resign
immediately in the manner and with the effect specified in this
Section.
Any
Corporation into which an
Authenticating Agent may be merged or converted or with which it may
be
consolidated, or any Corporation resulting from any merger, conversion
or
consolidation to which such Authenticating Agent shall be a party, or
any
Corporation succeeding to all or substantially all of the corporate agency
or
corporate trust business of an Authenticating Agent, shall be the successor
of
such Authenticating Agent hereunder, 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 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 the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent
shall
cease to be eligible in accordance with the provisions of this Section,
the
Trustee may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall (i) mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Registered Securities,
if
any, of the series with respect to which such Authenticating Agent shall
serve,
as their names and addresses appear in the Security Register, and (ii) if
Securities of the series are issued as Bearer Securities, publish notice
of such
appointment at least once in an Authorized Newspaper in the place where
such
successor Authenticating Agent has its principal office if such office
is
located outside the United States. 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
Company agrees to pay each
Authenticating Agent from time to time reasonable compensation for its
services
under this Section. If the Trustee makes such payments, it shall be
entitled to be reimbursed for such payments, subject to the provisions
of
Section 607.
The
provisions of Sections 308, 604 and
605 shall be applicable to each Authenticating Agent.
If
an Authenticating Agent is appointed
with respect to one or more series of Securities pursuant to this Section,
the
Securities of such series may have endorsed thereon, in addition to or
in lieu
of the Trustee’s certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This
is one of the Securities of the
series designated herein referred to in the within-mentioned
Indenture.
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The
Bank of New York Trust Company, N.A.,
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as
Trustee
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By:
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As
Authenticating Agent
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By:
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Authorized
Officer
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If
all of the Securities of any series
may not be originally issued at one time, and if the Trustee does not
have an
office capable of authenticating Securities upon original issuance located
in a
Place of Payment where the Company wishes to have Securities of such
series
authenticated upon original issuance, the Trustee, if so requested in
writing
(which writing need not be accompanied by or contained in an Officers’
Certificate by the Company), shall appoint in accordance with this Section
an
Authenticating Agent having an office in a Place of Payment designated
by the
Company with respect to such series of Securities.
HOLDERS
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
701. Company to
Furnish Trustee Names and Addresses of Holders.
In
accordance with Section 312(a)
of the Trust Indenture Act, the Company shall furnish or cause to be
furnished
to the Trustee
(1) semi-annually
with respect to Securities of each series not later than 15 days after
each
Regular Record Date for the payment of interest on such Securities or
upon such
other dates as are set forth in or pursuant to the Board Resolution or
indenture
supplemental hereto authorizing such series, a list, in each case in
such form
as the Trustee may reasonably require, of the names and addresses of
Holders as
of such applicable date, and
(2) 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,
provided,
however, that so long as the Trustee is the Security Registrar no such
list
shall be required to be furnished.
Section
702. Preservation
of Information; Communications to Holders.
The
Trustee shall comply with the
obligations imposed upon it pursuant to Section 312 of the Trust Indenture
Act.
Every
Holder of Securities or Coupons,
by receiving and holding the same, agrees with the Company and the Trustee
that
neither the Company, Guarantor, the Trustee, any Paying Agent or any
Security
Registrar shall be held accountable by reason of the disclosure of any
such
information as to the names and addresses of the Holders of Securities
in
accordance with Section 312(c) of the Trust Indenture Act, regardless of
the source from which such information was derived, and that the Trustee
shall
not be held accountable by reason of mailing any material pursuant to
a request
made under Section 312(b) of the Trust Indenture Act.
Section
703. Reports by
Trustee.
(1) Within
60 days after July 15 of each year commencing with the first July 15
following
the first issuance of Securities pursuant to Section 301, if required by
Section 313(a) of the Trust Indenture Act, the Trustee shall transmit,
pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated
as of such July 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the immediately
preceding July 15 and the date of this Indenture.
(2) The
Trustee shall transmit the reports required by Section 313(b) of the Trust
Indenture Act at the times specified therein.
(3) Reports
pursuant to this Section shall be transmitted in the manner and to the
Persons
required by Sections 313(c) and 313(d) of the Trust Indenture Act.
Section
704. Reports by
Company.
The
Company shall:
(1) (i)
deliver to the Trustee, within 30 days after the Company is required
to file the
same with the Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing
as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant
to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended; or, (ii) if the Company is not required to file information,
documents
or reports pursuant to either of said Sections, then it shall deliver
to the
Trustee audited annual and unaudited quarterly financial statements prepared
in
accordance with generally accepted accounting principles in the United
States
and, with respect to the unaudited quarterly financial statements, certified
by
an accounting officer of the Company, provided that the Company shall
not be
required to comply with the foregoing provisions of this clause (ii)
with
respect to any particular series of Securities issued hereunder so long
as a
Guarantee with respect to such series of Securities is in effect and
the
Guarantor files with the Commission its consolidated financial statements
in
compliance with Rule 3-10 (or any successor rule thereto) of Regulation
S-X
under the Securities Act;
(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
to all Holders of Securities within 30 days after the delivery thereof
to the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports
required to be delivered 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; provided, that the Company shall not be so obligated
to
the extent any such information, documents or reports have been filed
with the
Commission or are otherwise publicly available.
Delivery
of such documents, reports and
information pursuant to this Section 704 is for information purposes only
and the Trustee’s receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officers’
Certificate).
The
Company shall reasonably promptly
notify the Trustee when any Securities become listed on any national
securities
exchange and of any delisting therefrom.
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
Section
801. Company May
Consolidate, etc., Only on Certain Terms.
The
Company shall not consolidate with
or merge into any other Person or convey, transfer or lease its properties
and
assets substantially as an entirety to any Person, and no Person shall
consolidate with or merge into the Company or convey, transfer or lease
its
properties and assets substantially as an entirety to the Company,
unless:
(1) in
case the Company shall consolidate with or merge into another Person
or convey,
transfer or lease its properties and assets substantially as an entirety
to any
Person, the Person formed by such consolidation or into which the Company
is
merged or the Person which acquired by conveyance, transfer or lease
the
properties and assets of the Company substantially as an entirety shall
be a
legal entity organized and existing under the laws of any domestic or
foreign
jurisdiction, 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 any premium and interest
and
Additional Amounts, if any, 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 Officer’s Certificate and an Opinion of
Counsel each stating that such consolidation, merger, conveyance, transfer
or
lease and such supplemental indenture, if any, comply with this Article
and that
all conditions precedent herein provided for relating to such transaction
have
been complied with.
Section
802. Successor
Person Substituted for Company.
Upon
any consolidation or merger by the
Company with or into any other Person, or any conveyance, transfer or
lease by
the Company of its properties and assets substantially as an entirety
to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and
may
exercise every right and power of, the Company under this Indenture with
the
same effect as if such successor Person had been named as the Company
herein;
and in the event of any such conveyance, transfer or lease, the Company
(which
term shall for this purpose mean the Person named as the “Company” in the first
paragraph of this Indenture or any other successor Person which shall
become
such in the manner described in Section 801) shall be discharged from all
obligations and covenants under this Indenture, the Securities and the
Coupons
and may be dissolved and liquidated. The successor Person may cause
to be signed, and may issue either in its own name or in the name of
the Company
any or all of the Securities issuable hereunder which theretofore shall
not have
been signed by the Company and delivered to the Trustee; and, upon the
Company
Order of such successor Person instead of the Company and subject to
all the
terms, conditions and limitations in this Indenture prescribed, the Trustee,
pursuant to the terms hereof, shall authenticate and shall deliver any
Securities together with any Coupons appertaining thereto which previously
shall
have been signed and delivered by the Officers to the Trustee for
authentication, and any Securities which such successor Person thereafter
shall
cause to be signed and delivered to the Trustee for that purpose. All
of the Securities so issued together with any Coupons appertaining thereto
shall
in all respects have the same legal rank and benefit under this Indenture
as the
Securities theretofore or thereafter issued in accordance with the terms
of this
Indenture as though all of such Securities had been issued at the date
of the
execution hereof. In case of any such consolidation, merger,
conveyance, transfer or lease, such changes in phrasing and form (but
not in
substance) may be made in the Securities and the Coupons thereafter to
be issued
as may be appropriate.
SUPPLEMENTAL
INDENTURES
Section
901. Supplemental
Indentures without Consent of Holders.
Without
the consent of any Holders of
Securities or Coupons, the Company (when authorized by or pursuant to
a Board
Resolution), Guarantor 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 Person to the Company or Guarantor,
and the
assumption by any such successor of the covenants of the Company or Guarantor,
as applicable, contained herein and in the Securities; or
(2) to
add to the covenants of the Company for the benefit of the Holders of
all or any
series of Securities (as shall be specified in such supplemental indenture
or
indentures) or to surrender any right or power herein conferred upon
the
Company; or
(3) to
add to or change any of the provisions of this Indenture to provide that
Bearer
Securities may be registrable as to principal, to change or eliminate
any
restrictions on the payment of principal of, any premium or interest
on or any
Additional Amounts with respect to Securities, to permit Bearer Securities
to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be
exchanged for Bearer Securities of other authorized denominations or
to permit
or facilitate the issuance of Securities in uncertificated form, provided
any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining thereto in any material
respect; or
(4) to
establish the form or terms of Securities of any series and any Coupons
appertaining thereto as permitted by Sections 201 and 301; or
(5) to
evidence and provide for the acceptance of appointment hereunder by a
successor
Trustee with respect to the Securities of one or more series and to add
to or
change any of the provisions of this Indenture as shall be necessary
to provide
for or facilitate the administration of the trusts hereunder by more
than one
Trustee, pursuant to the requirements of Section 610; or
(6) to
cure any ambiguity or to correct or supplement any provision herein which
may be
defective or inconsistent with any other provision herein, or to make
any other
provisions with respect to matters or questions arising under this Indenture
which shall not adversely affect the interests of the Holders of Securities
of
any series then Outstanding or any Coupons appertaining thereto in any
material
respect; or
(7) to
add to, delete from or revise the conditions, limitations and restrictions
on
the authorized amount, terms or purposes of issue, authentication and
delivery
of Securities, as herein set forth; or
(8) to
add any additional Events of Default with respect to all or any series
of
Securities (as shall be specified in such supplemental indenture);
or
(9) to
supplement any of the provisions of this Indenture to such extent as
shall be
necessary to permit or facilitate the defeasance and discharge of any
series of
Securities pursuant to Article Four, provided that any such action shall
not
adversely affect the interests of any Holder of a Security of such series
and
any Coupons appertaining thereto or any other Security or Coupon in any
material
respect; or
(10) to
secure the Securities; or
(11) to
issue a Guarantee with respect to the Securities of any series; or
(12) to
make provisions with respect to conversion or exchange rights of Holders
of
Securities of any series; or
(13) to
amend or supplement any provision contained herein or in any supplemental
indenture (which amendment or supplement may apply to one or more series
of
Securities or to one or more Securities within any series as specified
in such
supplemental indenture or indentures), provided that such amendment or
supplement does not apply to any Outstanding Security issued prior to
the date
of such supplemental indenture and entitled to the benefits of such
provision.
Section
902. Supplemental
Indentures with Consent of Holders.
With
the consent of the Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities
of all series affected by such supplemental indenture (voting as one
class), by
Act of said Holders delivered to the Company and the Trustee, the Company
(when
authorized by or pursuant to a Board Resolution, which resolution may
provide
general terms or parameters for such action and may provide that the
specific
terms of such action may be determined in accordance with or pursuant
to a
Company Order), Guarantor 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 the Securities of such series or of modifying in any manner the rights
of the
Holders of Securities of such series under this Indenture; provided,
however,
that no such supplemental indenture, without the consent of the Holder
of each
Outstanding Security affected thereby, shall
(1) change
the Stated Maturity of the principal of, or any premium or installment
of
interest on or any Additional Amounts with respect to, any Security,
or reduce
the principal amount thereof or the rate (or modify the calculation of
such
rate) of interest thereon or any Additional Amounts with respect thereto,
or any
premium payable upon the redemption thereof or otherwise, or change the
obligation of the Company to pay Additional Amounts pursuant to
Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of
acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, adversely affect
the right of repayment at the option of any Holder as contemplated by
Article
Thirteen, or change the Place of Payment, Currency in which the principal
of,
any premium or interest on, or any Additional Amounts with respect to
any
Security is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the
ease of
redemption, on or after the Redemption Date or, in the case of repayment
at the
option of the Holder, on or after the date for repayment), or
(2) reduce
the percentage in principal amount of the Outstanding Securities of any
one or
more 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
reduce the
requirements of Section 1504 for quorum or voting, or
(3) change
any obligation of the Company to maintain an office or agency in the
places and
for the purposes specified in Section 1002, or
(4) release
Guarantor from any Guarantee, except as may be provided in the supplemental
indenture establishing the terms of a series of Securities subject to
such
Guarantee, or
(5) modify
any of the provisions of this Section or Section 513 or 1007, 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, or
(6) make
any change that adversely affects the right to convert or exchange any
Security
for Common Stock or other securities in accordance with its terms.
A
supplemental indenture which changes
or eliminates any covenant or other provision of this Indenture which
shall have
been included expressly and 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 Holders of Securities 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.
As
a condition to executing, or
accepting the additional trusts created by, any supplemental indenture
permitted
by this Article or the modifications thereby of the trust 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 and that it constitutes the legal, valid
and
binding obligation of the Company subject to customary
exceptions. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Section
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 a Security theretofore or thereafter
authenticated and delivered hereunder and of any Coupon appertaining
thereto
shall be bound thereby.
Section
905. Reference in
Securities to Supplemental Indentures.
Securities
of any series authenticated
and delivered after the execution of any supplemental indenture pursuant
to this
Article may, and shall if required by the Trustee, bear a notation in
form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any
series so modified as to conform, in the opinion of the Trustee and the
Company,
to any such supplemental indenture may be prepared and executed by the
Company
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
Section
906. Conformity
with Trust Indenture Act.
Every
supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
COVENANTS
Section
1001. Payment of Principal,
Any Premium, Interest and Additional Amounts.
The
Company covenants and agrees for
the benefit of the Holders of the Securities of each series that it will
duly
and punctually pay the principal of, any premium and interest on and
any
Additional Amounts with respect to the Securities of such series in accordance
with the terms thereof, any Coupons appertaining thereto and this
Indenture. Any interest due on any Bearer Security on or before the
Maturity thereof, and any Additional Amounts payable with respect to
such
interest, shall be payable only upon presentation and surrender of the
Coupons
appertaining thereto for such interest as they severally mature.
Section
1002. Maintenance of Office
or Agency.
The
Company shall maintain in each
Place of Payment for any series of Securities an Office or Agency where
Securities of such series (but not Bearer Securities, except as otherwise
provided below, unless such Place of Payment is located outside the United
States) may be presented or surrendered for payment, where Securities
of such
series may be surrendered for registration of transfer or exchange, where
Securities of such series that are convertible or exchangeable may be
surrendered for conversion or exchange, and where notices and demands
to or upon
the Company in respect of the Securities of such series relating thereto
and
this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company shall maintain, subject to any laws
or
regulations applicable thereto, an Office or Agency in a Place of Payment
for
such series which is located outside the United States where Securities
of such
series and any Coupons appertaining thereto may be presented and surrendered
for
payment; provided, however, that if the Securities of such series are
listed on
The International Stock Exchange of the United Kingdom and the Republic
of
Ireland or the Luxembourg Stock Exchange or any other stock exchange
located
outside the United States and such stock exchange shall so require, the
Company
shall maintain a Paying Agent in London, Luxembourg or any other required
city
located outside the United States, as the case may be, so long as the
Securities
of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee of the location, and any change
in the
location, of such Office or Agency. If at any time the Company shall
fail to maintain any such required Office or Agency or shall fail to
furnish the
Trustee with the address thereof, such presentations, surrenders, notices
and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified
for
the purpose with respect to such Securities as provided in or pursuant
to this
Indenture, and the Company hereby appoints the Trustee as its agent to
receive
all such presentations, surrenders, notices and demands.
Except
as otherwise provided in or
pursuant to this Indenture, no payment of principal, premium, interest
or
Additional Amounts with respect to Bearer Securities shall be made at
any Office
or Agency in the United States or by check mailed to any address in the
United
States or by transfer to an account maintained with a bank located in
the United
States; provided, however, if amounts owing with respect to any Bearer
Securities shall be payable in Dollars, payment of principal of, any
premium or
interest on and any Additional Amounts with respect to any such Security
may be
made at the Corporate Trust Office of the Trustee or any Office or Agency
designated by the Company in the Borough of Manhattan, The City of New
York, if
(but only if) payment of the full amount of such principal, premium,
interest or
Additional Amounts at all offices outside the United States maintained
for such
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar
restrictions.
The
Company may also from time to time
designate one or more other Offices or Agencies where the Securities
of one or
more series may be presented or surrendered for any or all such purposes
and may
from time to time rescind such designations; provided, however, that
no such
designation or rescission shall in any manner relieve the Company of
its
obligation to maintain an Office or Agency in each Place of Payment for
Securities of any series for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission
and
of any change in the location of any such other Office or
Agency. Unless otherwise provided in or pursuant to this Indenture,
the Company hereby designates as the Place of Payment for each series
of
Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Company’s Office or
Agency in the Borough of Manhattan, The City of New York for such
purpose. The Company may subsequently appoint a different Office or
Agency in the Borough of Manhattan, The City of New York for the Securities
of
any series.
Section
1003. Money for Securities
Payments to be Held in Trust.
If
the Company shall at any time act as
its own Paying Agent with respect to any series of Securities, it shall,
on or
before each due date of the principal of, any premium or interest on
or
Additional Amounts with respect to any of the Securities of such series,
segregate and hold in trust for the benefit of the Persons entitled thereto
a
sum in the Currency or Currencies in which the Securities of such series
are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal or any premium,
interest or Additional Amounts so becoming due until such sums shall
be paid to
such Persons or otherwise disposed of as herein provided, and shall promptly
notify the Trustee of its action or failure so to act.
Whenever
the Company shall have one or
more Paying Agents for any series of Securities, it shall, on or prior
to each
due date of the principal of, any premium or interest on or any Additional
Amounts with respect to any Securities of such series, deposit with any
Paying
Agent a sum (in the Currency or Currencies described in the preceding
paragraph)
sufficient to pay the principal or any premium, interest or Additional
Amounts
so becoming due, such sum to be held in trust for the benefit of the
Persons
entitled thereto, 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 shall cause each Paying
Agent for any series of Securities other than the Trustee to execute
and deliver
to the Trustee an instrument in which such Paying Agent shall agree with
the
Trustee, subject to the provisions of this Section, that such Paying
Agent
shall:
(1) hold
all sums held by it for the payment of the principal of, any premium
or interest
on or any Additional Amounts with respect to 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 provided in or pursuant to this
Indenture;
(2) give
the Trustee notice of any default by the Company in the making of any
payment of
principal, any premium or interest on or any Additional Amounts with
respect to
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
or for any
other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the
Trustee all sums held in trust by the Company or such Paying Agent, such
sums to
be held by the Trustee upon the same terms 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 sums.
Except
as otherwise provided herein or
pursuant hereto, 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,
any
premium or interest on or any Additional Amounts with respect to any
Security of
any series or any Coupon appertaining thereto and remaining unclaimed
for two
years after such principal or any such premium or interest or any such
Additional Amounts shall have 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 or any Coupon appertaining
thereto shall thereafter, as an unsecured general creditor, look only
to the
Company for payment thereof, and all liability of the Trustee or such
Paying
Agent with respect to such trust money, and all liability of the Company
as
trustee thereof, shall thereupon cease; provided, however, that the Trustee
or
such Paying Agent, before being required to make any such repayment,
may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in
each Place of Payment for such series or to be mailed to Holders of Registered
Securities of such series, or both, notice that such money remains unclaimed
and
that, after a date specified therein, which shall not be less than 30
days from
the date of such publication or mailing nor shall it be later than two
years
after such principal and any premium or interest or Additional Amounts
shall
have become due and payable, any unclaimed balance of such money then
remaining
will be repaid to the Company.
Section
1004. Additional
Amounts.
If
any Securities of a series provide
for the payment of Additional Amounts, the Company agrees to pay to the
Holder
of any such Security or any Coupon appertaining thereto Additional Amounts
as
provided in or pursuant to this Indenture or such
Securities. Whenever in this Indenture there is mentioned, in any
context, the payment of the principal of or any premium or interest on,
or in
respect of, any Security of any series or any Coupon or the net proceeds
received on the sale or exchange of any Security of any series, such
mention
shall be deemed to include mention of the payment of Additional Amounts
provided
by the terms of such series established hereby or pursuant hereto to
the extent
that, in such context, Additional Amounts are, were or would be payable
in
respect thereof pursuant to such terms, and express mention of the payment
of
Additional Amounts (if applicable) in any provision hereof shall not
be
construed as excluding Additional Amounts in those provisions hereof
where such
express mention is not made.
Except
as otherwise provided in or
pursuant to this Indenture or the Securities of any series, if the Securities
of
a series provide for the payment of Additional Amounts, at least 10 days
prior
to the first Interest Payment Date with respect to such series of Securities
(or
if the Securities of such series shall not bear interest prior to Maturity,
the
first day on which a payment of principal is made), and at least 10 days
prior
to each date of payment of principal or interest if there has been any
change
with respect to the matters set forth in the below-mentioned Officers’
Certificate, the Company shall furnish to the Trustee and the principal
Paying
Agent or Paying Agents, if other than the Trustee, an Officers’ Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether
such
payment of principal of and premium, if any, or interest, if any, on
the
Securities of such series shall be made to Holders of Securities of such
series
or the Coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of such series. If any such
withholding shall be required, then such Officers’ Certificate shall specify by
country the amount, if any, required to be withheld on such payments
to such
Holders of Securities or Coupons, and the Company agrees to pay to the
Trustee
or such Paying Agent the Additional Amounts required by the terms of
such
Securities. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability
or
expense reasonably incurred without negligence or bad faith on their
part
arising out of or in connection with actions taken or omitted by any
of them in
reliance on any Officers’ Certificate furnished pursuant to this
Section.
Section
1005. Company Statement as to
Compliance.
The
Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, an Officer’s
Certificate, stating as to each signer, that
(1) a
review of the activities of the Company during such year and of performance
under this Indenture has been made under his or her supervision;
and
(2) to
the best of his or her knowledge, based on such review, (a) the Company has
fulfilled all its obligations under this Indenture throughout such year,
or, if
there has been a material default in the fulfillment of any such obligation,
specifying each such default known to him or her and the nature and status
thereof, and (b) no event has occurred and is continuing which is, or after
notice or lapse of time or both would become, an Event of Default under
Section 501, or, if such an event has occurred and is continuing,
specifying each such event known to him or her and the nature and status
thereof.
Section
1006. Limitation on Liens on
Stock of the Principal Subsidiaries.
Neither
the Company nor Guarantor will,
nor will the Company or Guarantor permit any of its Subsidiaries to,
create,
assume, incur or suffer to exist any Lien upon any stock or indebtedness,
whether owned on the date of this Indenture or hereafter acquired, of
any
Principal Subsidiary, to secure any Obligation (other than the Securities)
of
the Company or Guarantor, any of their respective Subsidiaries or any
other
Person, without in any such case making effective provision whereby all
of the
Outstanding Securities shall be directly secured equally and ratably
with such
Obligation for so long as such Obligation (other than the Securities)
shall be
so secured.
Section
1007. Waiver of Certain
Covenants.
The
Company or Guarantor may omit in
any particular instance to comply with any term, provision or condition
set
forth in Sections 1006 and 1008 with respect to the Securities of any
series if
before the time for such compliance the Holders of not less than a majority
in
principal amount of the Outstanding Securities of such series shall,
by Act of
such Holders, either waive such compliance in such instance or generally
waive
compliance with such term, provision or condition, but no such waiver
shall
extend to or affect such term, provision or condition except to the extent
so
expressly waived and, until such waiver shall become effective, the obligations
of the Company and Guarantor and the duties of the Trustee in respect
of any
such term, provision or condition shall remain in full force and
effect.
Section
1008. Existence; Conduct of
Business.
The
Company will do or cause to be done
all things necessary to preserve, renew and keep in full force and effect
its
legal corporate existence and the rights, licenses, permits, privileges
and
franchises it reasonably deems necessary to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation,
conveyance, transfer or lease not prohibited under Article Eight.
REDEMPTION
OF SECURITIES
Section
1101. Applicability of
Article.
Redemption
of Securities of any series
at the option of the Company as permitted or required by the terms of
such
Securities shall be made in accordance with the terms of such Securities
and
(except as otherwise provided herein or pursuant hereto) this
Article.
Section
1102. Election to Redeem;
Notice to Trustee.
The
election of the Company to redeem
any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company
of less than all of the Securities of any series, the Company shall,
not less
than 20 nor more than 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 and, in the event that the Company shall determine
that the Securities of any series to be redeemed shall be selected from
Securities of such series having the same issue date, interest rate or
interest
rate formula, Stated Maturity and other terms (the “Equivalent Terms”), the
Company shall notify the Trustee of such Equivalent Terms.
Section
1103. Selection by Trustee of
Securities to be Redeemed.
If
less than all of the Securities of
any series are to be redeemed or if less than all of the Securities of
any
series with Equivalent Terms 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 or from the
Outstanding Securities of such series with Equivalent Terms, as the case
may be,
not previously called for redemption, by such method as the Trustee shall
deem
fair and appropriate and which may provide for the selection for redemption
of
portions of the principal amount of Registered Securities of such series;
provided, however, that no such partial redemption shall reduce the portion
of
the principal amount of a Registered Security of such series not redeemed
to
less than the minimum denomination for a Security of such series established
herein or pursuant hereto.
The
Trustee shall promptly notify the
Company and the Security Registrar (if other than itself) in writing
of the
Securities selected for redemption and, in the case of any Securities
selected
for partial redemption, the principal amount thereof to be
redeemed.
For
all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the
redemption
of Securities shall relate, in the case of any Securities redeemed or
to be
redeemed only in part, to the portion of the principal of such Securities
which
has been or is to be redeemed.
Unless
otherwise specified in or
pursuant to this Indenture or the Securities of any series, if any Security
selected for partial redemption is converted or exchanged for Common
Stock or
other securities in part before termination of the conversion or exchange
right
with respect to the portion of the Security so selected, the converted
or
exchanged portion of such Security shall be deemed (so far as may be)
to be the
portion selected for redemption. Securities which have been converted
or exchanged during a selection of Securities to be redeemed shall be
treated by
the Trustee as Outstanding for the purpose of such selection.
Section
1104. Notice of
Redemption.
Notice
of redemption shall be given in
the manner provided in Section 106, not less than 20 nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified in
the
Securities to be redeemed, to the Holders of Securities to be
redeemed. Failure to give notice by mailing in the manner herein
provided to the Holder of any Registered Securities designated for redemption
as
a whole or in part, or any defect in the notice to any such Holder, shall
not
affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
Any
notice that is mailed to the Holder
of any Registered Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not such Holder receives
the
notice.
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 principal
amount) of
the particular Security or Securities to be redeemed,
(4) in
case any Security is to be redeemed in part only, the notice which relates
to
such Security shall state that on and after the Redemption Date, upon
surrender
of such Security, the Holder of such Security will receive, without charge,
a
new Security or Securities of authorized denominations for the principal
amount
thereof remaining unredeemed,
(5) that,
on the Redemption Date, the Redemption Price shall become due and payable
upon
each such Security or portion thereof to be redeemed, and, if applicable,
that
interest thereon shall cease to accrue on and after said date,
(6) the
place or places where such Securities, together (in the case of Bearer
Securities) with all Coupons appertaining thereto, if any, maturing after
the
Redemption Date, are to be surrendered for payment of the Redemption
Price and
any accrued interest and Additional Amounts pertaining thereto,
(7) that
the redemption is for a sinking fund, if such is the case,
(8) that,
unless otherwise specified in such notice, Bearer Securities of any series,
if
any, surrendered for redemption must be accompanied by all Coupons maturing
subsequent to the date fixed for redemption or the amount of any such
missing
Coupon or Coupons will be deducted from the Redemption Price, unless
security or
indemnity satisfactory to the Company, the Trustee and any Paying Agent
is
furnished,
(9) if
Bearer Securities of any series are to be redeemed and any Registered
Securities
of such series are not to be redeemed, and if such Bearer Securities
may be
exchanged for Registered Securities not subject to redemption on the
Redemption
Date pursuant to Section 305 or otherwise, the last date, as determined by
the Company, on which such exchanges may be made,
(10) in
the case of Securities of any series that are convertible or exchangeable
into
Common Stock or other securities, the conversion or exchange price or
rate, the
date or dates on which the right to convert or exchange the principal
of the
Securities of such series to be redeemed will commence or terminate and
the
place or places where such Securities may be surrendered for conversion
or
exchange, and
(11) the
CUSIP number or Euroclear or Clearstream reference numbers of such Securities,
if any (or any other numbers used by a Depository to identify such
Securities).
A
notice of redemption published as
contemplated by Section 106 need not identify particular Registered
Securities to be redeemed.
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 respect to the Securities of any series called
for
redemption pursuant to Section 1104, 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 in the applicable
Currency sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date, unless otherwise specified
pursuant to Section 301 for or in the Securities of such series) any
accrued interest on and Additional Amounts with respect thereto, all
such
Securities or portions thereof 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 and accrued interest) such Securities shall cease to
bear
interest and the Coupons for such interest appertaining to any Bearer
Securities
so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in
accordance with said notice, together with all Coupons, if any, appertaining
thereto maturing after the Redemption Date, such Security shall be paid
by the
Company at the Redemption Price, together with any accrued interest and
Additional Amounts to the Redemption Date; provided, however, that, except
as
otherwise provided in or pursuant to this Indenture or the Bearer Securities
of
such series, installments of interest on Bearer Securities whose Stated
Maturity
is on or prior to the Redemption Date shall be payable only upon presentation
and surrender of Coupons for such interest (at an Office or Agency located
outside the United States except as otherwise provided in Section 1002),
and provided, further, that, except as otherwise specified in or pursuant
to
this Indenture or the Registered Securities of such series, installments
of
interest on Registered Securities whose Stated Maturity is on or prior
to the
Redemption Date shall be payable to the Holders of such Securities, or
one or
more Predecessor Securities, registered as such at the close of business
on the
Regular Record Dates therefor according to their terms and the provisions
of
Section 307.
If
any Bearer Security surrendered for
redemption shall not be accompanied by all appurtenant Coupons maturing
after
the Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing
Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the
Company
and the Trustee if there be furnished to them such security or indemnity
as they
may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee
or any
Paying Agent any such missing Coupon in respect of which a deduction
shall have
been made from the Redemption Price, such Holder shall be entitled to
receive
the amount so deducted; provided, however, that any interest or Additional
Amounts represented by Coupons shall be payable only upon presentation
and
surrender of those Coupons at an Office or Agency for such Security located
outside of the United States except as otherwise provided in
Section 1002.
If
any Security called for redemption
shall not be so paid upon surrender thereof for redemption, the principal
and
any premium, until paid, shall bear interest from the Redemption Date
at the
rate prescribed therefor in the Security.
Section
1107. Securities Redeemed in
Part.
Any
Registered Security which is to be
redeemed only in part shall be surrendered at any Office or Agency for
such
Security (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
Registered
Security or Securities of the same series, containing identical terms
and
provisions, 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. If a Security in
global form is so surrendered, the Company shall execute, and the Trustee
shall
authenticate and deliver to the Depository for such Security in global
form as
shall be specified in the Company Order with respect thereto to the Trustee,
without service charge, a new Security in global form in a denomination
equal to
and in exchange for the unredeemed portion of the principal of the Security
in
global form so surrendered
SINKING
FUNDS
Section
1201. Applicability of
Article.
The
provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a
series,
except as otherwise permitted or required in or pursuant to this Indenture
or
any Security of such series issued pursuant to this Indenture.
The
minimum amount of any sinking fund
payment provided for by the terms of Securities of any series is herein
referred
to as a “mandatory sinking fund payment”, and any payment in excess of such
minimum amount provided for by the terms of Securities of such series
is herein
referred to as an “optional sinking fund payment”. If provided for by
the terms of Securities of any series, the cash amount of any sinking
fund
payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section
1202. Satisfaction of Sinking
Fund Payments with Securities.
The
Company may, in satisfaction of all
or any part of any sinking fund payment with respect to the Securities
of any
series to be made pursuant to the terms of such Securities (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect
of which
cash shall have been released to the Company (as described below)), together
in
the case of any Bearer Securities of such series with all unmatured Coupons
appertaining thereto, and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant
to the
terms of such series of Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities
for
redemption through operation of the sinking fund and the amount of such
sinking
fund payment shall be reduced accordingly. If as a result of the
delivery or credit of Securities of any series in lieu of cash payments
pursuant
to this Section 1202, the principal amount of Securities of such series to
be redeemed in order to exhaust the aforesaid cash payment shall be less
than
$100,000, the Trustee need not call Securities of such series for redemption,
except upon Company Request, and such cash payment shall be held by the
Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the
request of
the Company from time to time pay over and deliver to the Company any
cash
payment so being held by the Trustee or such Paying Agent upon delivery
by the
Company to the Trustee of Securities of that series purchased by the
Company
having an unpaid principal amount equal to the cash payment requested
to be
released to the Company.
Section
1203. Redemption of
Securities for Sinking Fund.
Not
less than 75 days prior to each
sinking fund payment date for any series of Securities, the Company shall
deliver to the Trustee an Officers’ Certificate specifying the amount of the
next ensuing mandatory sinking fund payment for that series pursuant
to the
terms of that series, the portion thereof, if any, which is to be satisfied
by
payment of cash and the portion thereof, if any, which is to be satisfied
by
delivering and crediting of Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the
next ensuing mandatory sinking fund payment, and will also deliver to
the
Trustee any Securities to be so credited and not theretofore
delivered. If such Officers’ Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund
payment,
the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 45 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon
such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense
of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall
be made
upon the terms and in the manner stated in Sections 1106 and 1107.
REPAYMENT
AT THE OPTION OF HOLDERS
Section
1301. Applicability of
Article.
Securities
of any series which are
repayable at the option of the Holders thereof before their Stated Maturity
shall be repaid in accordance with the terms of the Securities of such
series. The repayment of any principal amount of Securities pursuant
to such option of the Holder to require repayment of Securities before
their
Stated Maturity, for purposes of Section 309, shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by
such
Securities unless and until the Company, at its option, shall deliver
or
surrender the same to the Trustee with a directive that such Securities
be
cancelled. Notwithstanding anything to the contrary contained in this
Section 1301, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one
or more
investment bankers or other purchasers to purchase such Securities by
paying to
the Holders of such Securities on or before the close of business on
the
repayment date an amount not less than the repayment price payable by
the
Company on repayment of such Securities, and the obligation of the Company
to
pay the repayment price of such Securities shall be satisfied and discharged
to
the extent such payment is so paid by such purchasers.
SECURITIES
IN FOREIGN CURRENCIES
Section
1401. Applicability of
Article.
Whenever
this Indenture provides for
any distribution to Holders of Securities of any series in which not
all of such
Securities are denominated in the same Currency, in the absence of any
provision
to the contrary in or pursuant to this Indenture or the Securities of
such
series, any amount in respect of any Security denominated in a Currency
other
than Dollars shall be treated for any such distribution as that amount
of
Dollars that could be obtained for such amount on such reasonable basis
of
exchange and as of the record date with respect to Registered Securities
of such
series (if any) for such distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such
distribution) as the Company may specify in a written notice to the Trustee
or,
in the absence of such written notice, as the Trustee may
determine.
MEETINGS
OF HOLDERS OF SECURITIES
Section
1501. Purposes for Which
Meetings may be Called.
A
meeting of Holders of Securities of
any one or more series may be called at any time and from time to time
pursuant
to this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other Act provided by this Indenture
to be
made, given or taken by Holders of Securities of the relevant
series.
Section
1502. Call, Notice and Place
of Meetings.
(1) The
Trustee may at any time call a meeting of Holders of Securities of any
one or
more series for any purpose specified in Section 1501, to be held at such
time and at such place in the Borough of Manhattan, The City of New York,
or, if
Securities of such one or more series have been issued in whole or in
part as
Bearer Securities, in London or in such place outside the United States
as the
Trustee shall determine. Notice of every meeting of Holders of
Securities of any one or more series, setting forth the time and the
place of
such meeting and in general terms the action proposed to be taken at
such
meeting, shall be given to the Holders of Securities of the relevant
series, in
the manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(2) In
case at any time the Company (by or pursuant to a Board Resolution) or
the
Holders of at least 10% in principal amount of the Outstanding Securities
of any
one or more series entitled to vote on a matter as a group shall have
requested
the Trustee to call a meeting of the Holders of Securities of the applicable
series for any purpose specified in Section 1501, by written request
setting forth in reasonable detail the action proposed to be taken at
the
meeting, and the Trustee shall not have mailed notice of or made the
first
publication of the notice of such meeting within 21 days after receipt
of such
request (whichever shall be required pursuant to Section 106) or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in
the
Borough of Manhattan, The City of New York, or, if Securities of such
applicable
series are to be issued as Bearer Securities, in London for such meeting
and may
call such meeting for such purposes by giving notice thereof as provided
in
clause (1) of this Section.
Section
1503. Persons Entitled to
Vote at Meetings.
To
be entitled to vote at any meeting
of Holders of Securities of any one or more series, as appropriate, a
Person
shall be (1) a Holder of one or more Outstanding Securities of such series,
or (2) a Person appointed by an instrument in writing as proxy for a Holder
or Holders of one or more Outstanding Securities of the applicable series
by
such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any one
or more
series shall be the Persons entitled to vote at such meeting and their
counsel,
any representatives of the Trustee and its counsel, any representatives
of the
Company and its counsel and any representatives of Guarantor and its
counsel.
Section
1504. Quorum;
Action.
The
Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute
a
quorum for a meeting of Holders of Securities of such series; provided,
however,
that with respect to a consent or waiver as contemplated in Section 902,
the Persons entitled to vote a majority in aggregate principal amount
of the
Outstanding Securities of all series affected by any such supplemental
indenture
shall constitute a quorum for a meeting of Holders of Securities of all
such
series; provided, further, however, if any action is to be taken at such
meeting
with respect to a consent or waiver which this Indenture expressly provides
may
be given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of one or more series, the Persons
holding
or representing such specified percentage in principal amount of the
Outstanding
Securities of the applicable series shall constitute a quorum. In the
absence of a quorum within 30 minutes after the time appointed for any
such
meeting, the meeting shall, if convened at the request of Holders of
Securities
of such applicable series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined
by
the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less
than 10
days as determined by the chairman of the meeting prior to the adjournment
of
such adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 1502(1), except that such
notice need be given only once not less than five days prior to the date
on
which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage,
as
provided above, of the principal amount of the Outstanding Securities
of such
applicable series which shall constitute a quorum.
Except
as limited by the proviso to
Section 902, any resolution presented to a meeting or adjourned meeting
duly reconvened at which a quorum is present as aforesaid may be adopted
only by
the affirmative vote of the Holders of a majority in principal amount
of the
Outstanding Securities of that series; provided, however, that, with
respect to
a consent or waiver contemplated in Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is
present
as aforesaid may be adopted only by the affirmative vote of the Holders
of a
majority in aggregate principal amount of the Outstanding Securities
of all
series affected by any such supplemental indenture (voting as a single
class);
provided, however, that, except as limited by the proviso to Section 902,
any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of one or
more
series may be adopted at a meeting or an adjourned meeting duly convened
and at
which a quorum is present as aforesaid only by the affirmative vote of
the
Holders holding or representing such specified percentage in principal
amount of
the Outstanding Securities of the applicable series; and provided, further,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made,
given
or taken by the Holders of a specified percentage, which is less than
a majority
in principal amount of the Outstanding Securities of one or more series
may be
adopted at a meeting or an adjourned meeting duly reconvened and at which
a
quorum is present as aforesaid by the affirmative vote of the Holders
of such
specified percentage in principal amount of the Outstanding Securities
of the
applicable series.
Any
resolution passed or decision taken
at any meeting of Holders of Securities of any one or more series duly
held in
accordance with this Section shall be binding on all the Holders of Securities
of such applicable series and the Coupons appertaining thereto, whether
or not
such Holders were present or represented at the meeting.
Section
1505. Determination of Voting
Rights; Conduct and Adjournment of Meetings.
(1) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities
of
any applicable series in regard to proof of the holding of Securities
of such
series and of the appointment of proxies and in regard to the appointment
and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified
in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank
or banker
authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine
without the proof specified in Section 104 or other proof.
(2) The
Trustee shall, by an instrument in writing, appoint a temporary chairman
of the
meeting, unless the meeting shall have been called by the Company or
by Holders
of Securities as provided in Section 1502(2), in which case the Company or
the Holders of Securities of the one or more series calling the meeting,
as the
case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
elected by
vote of the Persons entitled to vote a majority in principal amount of
the
Outstanding Securities of such applicable series represented at the
meeting.
(3) Unless
otherwise provided in or pursuant to a Security, at any meeting, each
Holder of
a Security of such applicable series or proxy shall be entitled to one
vote for
each $1,000 principal amount of Securities of such applicable series
held or
represented by him; provided, however, that no vote shall be cast or
counted at
any meeting in respect of any Security challenged as not Outstanding
and ruled
by the chairman of the meeting to be not Outstanding. The chairman of
the meeting shall have no right to vote, except as a Holder of a Security
of
such applicable series or proxy.
(4) Any
meeting of Holders of Securities of any one or more series duly called
pursuant
to Section 1502 at which a quorum is present may be adjourned from time to
time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such applicable series represented at the meeting;
and
the meeting may be held as so adjourned without further notice.
Section
1506. Counting Votes and
Recording Action of Meetings.
The
vote upon any resolution submitted
to any meeting of Holders of Securities of any one or more series shall
be by
written ballots on which shall be subscribed the signatures of the Holders
of
Securities of the applicable series or of their representatives by proxy
and the
principal amounts and serial numbers of the Outstanding Securities of
the
applicable series held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count
all votes
cast at the meeting for or against any resolution and who shall make
and file
with the secretary of the meeting their verified written reports in triplicate
of all votes cast at the meeting. A record, at least in triplicate,
of the proceedings of each meeting of Holders of Securities of any one
or more
series shall be prepared by the secretary of the meeting and there shall
be
attached to said record the original reports of the inspectors of votes
on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting
and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting
and one
such copy shall be delivered to the Company, and another to the Trustee
to be
preserved by the Trustee, the latter to have attached thereto the ballots
voted
at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
*
* * *
*
This
instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to
be an
original, but all such counterparts shall together constitute but one
and the
same instrument.
IN
WITNESS WHEREOF, the parties hereto
have caused this Indenture to be duly executed, and their respective
corporate
seals to be hereunto affixed, all as of the day and year first above
written.
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CSX
TRANSPORTATION, INC.
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By:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title: Vice
President and Controller
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THE
BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
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By:
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/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
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Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title:
Assistant Treasurer
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CSX
Transportation, Inc. –
Base Indenture
–
Signature
Page