Exhibit 4.5
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ABC RAIL PRODUCTS CORPORATION
THE COMPANY
AND
FIRST TRUST OF ILLINOIS, NATIONAL ASSOCIATION
THE TRUSTEE
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INDENTURE
DATED AS OF ___________, 1996
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............ 1
SECTION 101. Definitions........................................ 1
SECTION 102. Compliance Certificates and Opinions............... 8
SECTION 103. Form of Documents Delivered to Trustee............. 8
SECTION 104. Acts of Holders; Record Dates...................... 9
SECTION 105. Notices, Etc., to Trustee and Company.............. 11
SECTION 106. Notice to Holders; Waiver.......................... 11
SECTION 107. Applicability of Trust Indenture Act............... 11
SECTION 108. Effect of Headings and Table of Contents........... 12
SECTION 109. Successors and Assigns............................. 12
SECTION 110. Separability Clause................................ 12
SECTION 111. Benefits of Indenture.............................. 12
SECTION 112. Governing Law...................................... 12
SECTION 113. Legal Holidays..................................... 12
SECTION 114. Execution in Counterparts.......................... 13
ARTICLE TWO
SECURITY FORMS..................................................... 13
SECTION 201. Forms Generally.................................... 13
SECTION 202. Form of Trustee's Certificate of Authentication.... 13
ARTICLE THREE
THE SECURITIES..................................................... 14
SECTION 301. Amount Unlimited; Issuable in Series............... 14
SECTION 302. Denominations...................................... 16
SECTION 303. Execution, Authentication, Delivery and Dating..... 16
SECTION 304. Temporary Securities............................... 18
SECTION 305. Registration, Registration of Transfer and Exchange 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities... 21
SECTION 307. Payment of Principal and Interest; Interest Rights
Preserved.......................................... 22
SECTION 308. Persons Deemed Owners.............................. 23
SECTION 309. Cancellation....................................... 24
SECTION 310. Computation of Interest............................ 24
ARTICLE FOUR
SATISFACTION AND DISCHARGE........................................ 24
SECTION 401. Satisfaction and Discharge of Indenture........... 24
SECTION 402. Application of Trust Money........................ 25
ARTICLE FIVE
REMEDIES.......................................................... 26
SECTION 501. Event of Default.................................. 26
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.......................... 27
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee............................ 28
SECTION 504. Trustee May File Proofs of Claim.................. 29
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities........................................ 29
SECTION 506. Application of Money Collected.................... 29
SECTION 507. Limitation on Suits............................... 30
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest................... 31
SECTION 509. Restoration of Rights and Remedies................ 31
SECTION 510. Rights and Remedies Cumulative.................... 31
SECTION 511. Delay or Omission Not Waiver...................... 31
SECTION 512. Control by Holders................................ 31
SECTION 513. Waiver of Past Defaults........................... 32
SECTION 514. Undertaking for Costs............................. 32
ARTICLE SIX
THE TRUSTEE....................................................... 33
SECTION 601. Certain Duties and Responsibilities............... 33
SECTION 602. Notice of Defaults................................ 34
SECTION 603. Certain Rights of Trustee......................... 34
SECTION 604. Not Responsible for Recitals or
Issuance of Securities............................ 35
SECTION 605. May Hold Securities............................... 35
SECTION 606. Money Held in Trust............................... 35
SECTION 607. Compensation and Reimbursement.................... 36
SECTION 608. Disqualification; Conflicting Interests........... 36
SECTION 609. Corporate Trustee Required; Eligibility........... 41
SECTION 610. Registration and Removal;
Appointment of Successor.......................... 42
SECTION 611. Acceptance of Appointment by Successor............ 43
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.......................................... 44
SECTION 613. Preferential Collection of Claims Against Company. 45
SECTION 614. Appointment of Authenticating Agent............... 48
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................. 51
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders........................................... 51
SECTION 702. Preservation of Information;
Communications to Holders......................... 52
SECTION 703. Reports by Trustee................................ 52
SECTION 704. Reports by Company................................ 53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................... 54
SECTION 801. Consolidations and Mergers of Company and
Conveyances Permitted Subject to Certain
Conditions........................................ 54
SECTION 802. Rights and Duties of Successor Corporation........ 54
SECTION 803. Officer's Certificate and Opinion of Counsel...... 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES........................................... 55
SECTION 901. Supplemental Indentures Without
Consent of Holders................................ 55
SECTION 902. Supplemental Indentures with Consent of Holders... 56
SECTION 903. Execution of Supplemental Indentures; Opinions.... 57
SECTION 904. Effect of Supplemental Indentures................. 57
SECTION 905. Conformity with Trust Indenture Act............... 58
SECTION 906. Reference in Securities to Supplemental Indentures 58
ARTICLE TEN
COVENANTS......................................................... 59
SECTION 1001. Payment of Principal, Premium and Interest........ 59
SECTION 1002. Maintenance of Office or Agency................... 59
SECTION 1003. Money for Securities Payments To Be Held in Trust. 59
SECTION 1004. Statement by Officers as to Default............... 60
SECTION 1005. Delivery of Certain Information................... 60
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.......................................... 61
SECTION 1101. Applicability of Article.......................... 61
SECTION 1102. Election to Redeem; Notice to Trustee............. 61
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. 61
SECTION 1104. Notice of Redemption.............................. 62
SECTION 1105. Deposit of Redemption Price....................... 63
SECTION 1106. Securities Payable on Redemption Date............. 63
SECTION 1107. Securities Redeemed in Part....................... 63
ARTICLE TWELVE
SINKING FUNDS..................................................... 64
SECTION 1201. Applicability of this Article..................... 64
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities................................... 64
SECTION 1203. Redemption of Securities for Sinking Fund......... 64
ARTICLE THIRTEEN
DEFEASANCE........................................................ 65
SECTION 1301. Applicability of Article; Company's Option
to Effect Defeasance.............................. 65
SECTION 1302. Defeasance and Discharge.......................... 65
SECTION 1303. Covenant Defeasance............................... 65
SECTION 1304. Conditions of Defeasance.......................... 66
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous................ 67
SECTION 1306. Reinstatement..................................... 68
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS..................... 68
SECTION 1401. Applicability of Article.......................... 68
SECTION 1402. Notice of Repurchase Date......................... 68
SECTION 1403. Deposit of Repurchase Price....................... 69
SECTION 1404. Securities Payable on Repurchase Date............. 69
SECTION 1405. Securities Repurchased in Part.................... 69
ARTICLE FIFTEEN
CORPORATE OBLIGATION ONLY......................................... 70
SECTION 1501. Indenture and Securities Solely
Corporate Obligations............................. 70
INDENTURE
INDENTURE, dated as of _____________, 1996, between ABC RAIL PRODUCTS
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware ( the "Company"), and FIRST TRUST OF ILLINOIS, NATIONAL
ASSOCIATION, a national banking association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
A. The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (the "Securities"), to be
issued in one or more series unlimited as to principal amount, to bear such
rates of interest, to mature at such times and to have such other provisions as
in this Indenture provided.
B. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in order to declare the terms and conditions upon which the
Securities are authenticated, issued and delivered, and in consideration of the
premises and the purchase of the Securities by the Holders (as defined herein)
thereof, the Company and the Trustee covenant and agree with each other, for the
benefit of all Holders from time to time of the Securities or of any series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS
For all purposes of this Indenture and of any supplemental indenture
hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust
Indenture Act (as defined herein), 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 GAAP;
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(5) the word "or" is not exclusive;
(6) the word "including" means including without limitation; and
(7) words in the singular include the plural and words in the plural
include the singular.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the 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 that 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 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution delivered to the Trustee
that is certified by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification.
"Business Day" when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York, or Chicago, Illinois, and the Place
of Payment are authorized or obligated by law or executive order to close.
"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 instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
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"Company Request" or "Company Order" means a written request or order
delivered to the Trustee that is signed in the name of the Company by its
Chairman of the Board, its President or any Vice President, its Chief Financial
Officer, and by its Treasurer, any Assistant Treasurer, its Controller, any
Assistant Controller, its Secretary or any Assistant Secretary.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Corporate Trust Department.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depositary by the Company pursuant to Section 301.
"Direction" has the meaning specified in Section 104(c).
"Exempt Securities" has the meaning given it in Section 1008.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all indebtedness for borrowed money having a maturity
of more than 12 months from the date as of which the amount thereof is to be
determined.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession in the United States.
"Global Security" means a Security evidencing all or part of a series of
Securities, issued to the Depositary for such series or its nominee, and
registered in the name of such Depositary or nominee.
"Global Security Registered Owner" has the meaning given it in Section 305.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into
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pursuant to the applicable provisions hereof. The term "Indenture" shall also
include the terms of particular series of Securities established as contemplated
by Section 301, whether or not a supplemental indenture is entered into with
respect thereto.
"Interest," when used with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, occurrence of any Repurchase
Date or otherwise.
"Officer's Certificate" means a certificate delivered to the Trustee that
is signed by the Company's Chairman of the Board, its President or any Vice
President, and by its Treasurer, any Assistant Treasurer, its Controller, any
Assistant Controller, its Secretary or any Assistant Secretary.
"Opinion of Counsel" means a written opinion of counsel from counsel for
the Company (who may be an employee of the Company), or outside counsel for the
Company.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to any series of Securities, means,
as of the date of determination, all Securities of that series which are
authenticated and delivered under this Indenture, except:
(i) Securities of that series previously cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities of that series for whose payment or redemption
money in the necessary amount has been previously deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities of that series that have 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, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by
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a bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
(A) the principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (B) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided for such Security on
the date of original issuance thereof, as contemplated by Section 301, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (A) above) of such Security, and (C) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that the Trustee knows to be so owned
shall be so disregarded. Notwithstanding the foregoing clause (C), Securities so
owned by the Company, such obligor, or such Affiliate that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities so long as the pledgee is not the Company or any other obligor upon
the Securities or an Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, premium (if any), or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or any other entity or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means such city or political subdivision thereof where the principal of, premium
(if any), and interest on the Securities of that series are payable as specified
for such Securities as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
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"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the fifteenth day (whether or not a
Business Day) next preceding such Interest Payment Date or such other date with
respect to Securities of any series specified as contemplated by Section 301.
"Repurchase Date," when used with respect to any Security of any series to
be repurchased, means the date, if any, fixed for such repurchase pursuant to
Section 301.
"Repurchase Price," when used with respect to any Security of any series to
be repurchased, means the price, if any, at which such Security is to be
repurchased pursuant to Section 301.
"Responsible Officer," when used with respect to the Trustee, means the
Chairman of the Board of Directors, the President, any Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer,
any Assistant Treasurer, any Trust Officer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Trustee's Corporate
Trust Office because of that person's knowledge of and familiarity with the
particular subject.
"Restricted Security" means a Security that is a "restricted security" as
defined in Rule 144(a)(3) under the Securities Act or any successor provision
thereto or a Security that by its terms can only be sold pursuant to Regulation
S, Rule 144, or Rule 144A under the Securities Act (or successor provisions
thereto) or in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4 of the Securities Act; provided, however,
that once the Security is sold pursuant to the provisions of Rule 144, including
Rule 144(k), it will cease to be a Restricted Security.
"Rule 144A Information" means the information satisfying the requirements
of Rule 144A(d)(4) under the Securities Act on the date hereof.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities of any series authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation, association, partnership or other entity
of which more than 80% of the outstanding Voting Stock is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this instrument is qualified (to the extent
required by law) under such act.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the holder of
such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
of or interest on the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President" when used with respect to 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," and when used with respect to the Company
means any vice president who is an officer of the Company, whether or not
designated by a number or word or words before such title.
"Voting Stock" means securities of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such corporation, association,
partnership or other entity (irrespective of whether or not at the time
securities of any other class or classes shall have or might have voting power
by reason of the happening of any contingency).
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SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which such officer's certificate or opinion is based are erroneous. Any
such certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters or information which is in the possession of the
Company, upon a certificate or opinion of, or representations by, an
officer or officers of the Company, unless such counsel knows that the
certificate or opinion or representations with respect to such matters are
erroneous. Any Opinion of Counsel may be
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stated to be based on the opinion of other counsel, in which event it shall
be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is expressly hereby
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing pointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder, including
a Depositary 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 action provided
or permitted by this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her
the execution thereof. Where such execution is by an officer of a
corporation or a member of a partnership, acting on behalf of such
corporation or partnership, such certificate or affidavit shall also
constitute sufficient proof of such officer's authority. Notwithstanding
the foregoing, the fact and date of the execution of any such instrument or
writing, and the authority of the Person executing the same, may also be
proved in any other manner that the Trustee deems sufficient.
(c) Except as provided in the next paragraph of this Subsection (c) or
as specifically provided otherwise pursuant to Section 301 with respect to
any series of Securities, the Company may set any day as the record date
for the purpose of determining the Holders of Securities of any series
entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of Securities of
such series. With regard to any record date set pursuant to this Subsection
(c), the Holders of Outstanding Securities of the relevant series on such
record date (or their duly appointed agents), and only such Persons, shall
be entitled to give or take the
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relevant action, whether or not such Holders remain Holders after such
record date. With regard to any action that may be given or taken hereunder
only by Holders of a requisite principal amount of Outstanding Securities
of any series (or their duly appointed agents) and for which a record date
is set pursuant to this Subsection (c), the Company may, at its option, set
an expiration date after which no such action purported to be given or
taken by any Holder shall be effective hereunder unless given or taken on
or prior to such expiration date by Holders of the requisite principal
amounts of Outstanding Securities of such series on such record date (or
their duly appointed agents). On or prior to any expiration date set
pursuant to this Subsection (c), the Company may, on one or more occasions
at its option, extend such date to any later date. Nothing in this
Subsection (c) shall prevent any Holder (or any duly appointed agent
thereof) from giving or taking, after any expiration date, any action
identical to, or, at any time, contrary to or different from any action
given or taken, or purported to have been given or taken, hereunder by a
Holder on or prior to such date, in which event the Company may set a
record date in respect hereof pursuant to this Subsection (c).
Notwithstanding the foregoing, upon receipt by the Trustee, with
respect to Securities of any series, of (i) any Notice of Default pursuant
to Section 501, (ii) any declaration of acceleration, or any rescission and
annulment of any such declaration pursuant to Section 502, or (iii) any
direction given pursuant to Section 512 (any such notice, declaration,
rescission and annulment, or direction being referred to herein as a
"Direction"), a record date shall automatically and without any other
action by any Person be set for the purpose of determining the Holders of
Outstanding Securities of such series entitled to join in such Direction,
which record date shall be the close of business on the day the Trustee
receives such Direction. The Holders of Outstanding Securities of such
series on such record date (or their duly appointed agents), and only such
Persons, shall be entitled to join in such Direction, whether or not such
Holders remain Holders after such record date; provided that, unless such
Direction shall have become effective by virtue of Holders of the requisite
principal amount of Outstanding Securities of such series on such record
date (or their duly appointed agents) having joined therein on or prior to
the 90th day after such record date, such Direction shall automatically and
without any action by any Person be cancelled and be of no further effect.
Nothing in this paragraph shall prevent a Holder (or a duly appointed agent
thereof) from giving, before or after the expiration of such 90-day period,
a Direction contrary to or different from, or, after the expiration of such
period, identical to, a Direction that has been cancelled pursuant to the
proviso to the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this Subsection (c).
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange thereof or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating
Agent, or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
10
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office or at such other
address as previously furnished in writing to the Holders and the Company
by the Trustee for such purpose, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, registered or certified mail postage prepaid, to the
Company addressed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attn: Senior Vice President, or at such other address as
previously furnished in writing to the Trustee by the Company for such
purpose.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Except as otherwise provided in any supplemental indenture with respect to
Holders of Securities of any series issued pursuant to such supplemental
indenture, where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to the Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice. 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 shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service 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.
SECTION 107. APPLICABILITY OF TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
11
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities of any series
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent, and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Illinois.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Repurchase
Date, sinking fund payment date or Stated Maturity or Maturity of any Security
of any series or any date by which any report or other information is due
pursuant to any provision of this Indenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or such Securities)
payment of interest or principal (and premium, if any) or delivery of such
report or information need not be made on or by such date, but may be made on
the next succeeding Business Day with the same force and effect (a) with respect
to any payment, as if made on the Interest Payment Date, Repurchase Date or
Redemption Date, sinking fund payment date or at the Stated Maturity or
Maturity, and (b) with respect to any such report or other information, as if
delivered by the stated due date. No interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Repurchase Date, sinking
fund payment date or Stated Maturity or Maturity, as the case may be, to such
next succeeding Business Day.
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SECTION 114. EXECUTION IN COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form as shall
be established without the approval of any Holders by or pursuant to one or more
Board Resolutions in accordance with Section 301 or in one or more indentures
supplemental hereto, in each case, including without limitation such appropriate
legends, insertions, omissions, substitutions and other variations as are
required or are not prohibited by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as necessary or appropriate to comply with any
law or with any rule or regulation made pursuant thereto or with any rules or
regulations of any securities exchange on which such series of Securities may be
listed, or to conform to general usage, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
The definitive Securities of each series shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates 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.
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
as Trustee
By:
-----------------------------
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities of all series that may be
issued, executed, authenticated, delivered and Outstanding under this Indenture
is unlimited.
The Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, by or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, there
shall be set forth in an Officer's Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable:
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities of the series authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1405 and except for any Securities of the series which, pursuant to Section
303, are deemed never to have been authenticated and delivered hereunder);
(3) if other than the Trustee, the identity of each Security Registrar
and Paying Agent;
(4) the date or dates, or the method by which such date or dates are
determined or extended, on which the principal and premium (if any) of the
Securities of the series shall be payable;
(5) the rate or rates (which may be fixed or variable) at which the
Securities of the series shall bear interest, or the method by which such
rates will be determined, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, or the method by which such date will be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve thirty-day months;
(6) if other than the fifteenth day next preceding an Interest Payment
Date, the Regular Record Date with respect to an Interest Payment Date;
(7) the place or places, if any, other than or in addition to the
Corporate Trust Office, where the principal of, premium (if any), and
interest on Securities of the series shall be payable;
14
(8) the period or periods within which, the price or prices at which,
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company if the Company
is to have such option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions
upon which Securities of the series shall be redeemed, repaid, or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and integral multiples
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which payment of the principal,
premium (if any), and interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(12) if the amount of payments of principal of, premium (if any), or
interest on any Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(13) if the principal of, premium (if any), or interest on any
Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units other than
that or those in which the Securities are stated to be payable, the
currency, currencies or currency units in which payment of the principal
of, premium (if any), and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or provable in bankruptcy pursuant to Sections 503 and 504;
(15) the application, if any, of either or both of Section 1302 and
Section 1303 to the Securities of the series;
(16) any addition to or change in the Events of Default with respect
to the Securities of the series and any change in the right of the Trustee
or the Holders to declare the principal of, premium (if any), and interest
on, such Securities due and payable;
(17) any addition to or change in the covenants and definitions
currently set forth in this Indenture or in the terms currently set forth
in Article Eight or Article Ten;
15
(18) if and as applicable, that the Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the Depositary or Depositaries for such Global Security
or Global Securities and any circumstances other than those set forth in
Section 305 in which any such Global Security may be transferred to, and
registered and exchanged for Securities of the series registered in the
name of, a Person other than the Depositary for such Global Security or
nominee thereof, and in which any such transfer may be registered; and
(19) any other terms of the series, including, without limitation, any
subordination provisions (which terms shall not be prohibited by the
provisions of this Indenture, except as permitted by Section 901(4)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officer's Certificate referred to
above or in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time. Unless otherwise provided,
Securities within a single series may have different terms and a series may be
reopened, without the consent of the Holders, for issuance of additional
Securities of such series.
If any of the terms of the series are established by action taken by or
pursuant to one or more Board Resolutions, a copy of an appropriate record of
such action(s) shall be certified by the Secretary or any Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth the terms of the Securities of such series.
SECTION 302. DENOMINATIONS.
Unless other denominations and amounts shall be fixed from time to time by
or pursuant to one or more Board Resolutions, the Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated by Section 301. In the absence of any
contrary provisions with respect to the Securities of any series pursuant to
Section 301, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple of $1,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, any of its Vice Presidents, its Chief Financial
Officer, the Treasurer or any Assistant Treasurer and attested by its Secretary
or any of its Assistant Secretaries. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who,
at the time such manual or facsimile signatures were affixed to such Securities,
were properly serving as such officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
16
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as
provided in this Indenture. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon,
(a) a copy of any Board Resolution;
(b) an executed supplemental indenture, if any;
(c) an Officer's Certificate pursuant to Section 301; and
(d) an Opinion of Counsel stating:
(1) if the form of such Securities has been established by or pursuant
to one or more Board Resolutions as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by or
pursuant to one or more Board Resolutions as permitted by Section 301, that
such terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities have been duly authorized and, when executed,
authenticated, issued and delivered in accordance with the terms of this
Indenture, and assuming due authentication thereof by the Trustee, and when
such Securities are delivered and paid for by the purchaser thereof, will
constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization, moratorium
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; provided, however, that such
Opinion of Counsel need express no opinion as to whether a court in the
United States would render a money judgment in a currency other than that
of the United States and the counsel rendering such Opinion of Counsel
shall be entitled to assume for purposes of such Opinion of Counsel that
the internal laws of any state other than Illinois are the same as the
internal laws of Illinois.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under such Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
17
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of any series are not to be originally issued at
one time, it shall not be necessary to deliver the Officer's Certificate
otherwise required pursuant to Section 301 or a Company Order or an Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated and issued as of the date of its
authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its Authenticating Agent by manual signature, and
such certificate upon any such Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any such Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities of that series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities of that series in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in the form of Global
Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable, subject to Section 305 hereof,
for definitive Securities of such series upon surrender of the temporary
Securities of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. 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 and tenor.
18
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company may act as, or may appoint an agent or the Trustee to act as,
the depository for the safekeeping of certificated Securities, issuing agent of
the Securities and registrar for the registration of Securities and transfers of
Securities (the "Security Registrar") pursuant to Section 301. The Company shall
cause to be kept a register (the register maintained by the Trustee, any agent
or in any other office or agency of the Company in a Place of Payment being
herein sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and transfers of Securities. Unless
the Company or another agent is designated as the Security Registrar with
respect to any series of Securities pursuant to Section 301, the Trustee is
hereby appointed "Security Registrar" of each series of Securities for the
purpose of registering Securities and transfers of Securities on such Security
Register as herein provided at the Corporate Trust Office.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor bearing a number not contemporaneously outstanding. No Security to be
issued upon exchange of an Outstanding Security shall be issued in a
denomination less than $1,000 unless otherwise specified pursuant to Section
301.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount and denomination or
tenor, upon surrender of such Securities to be exchanged at such office or
agency, and upon payment of any taxes or governmental charges as hereinafter
provided. Whenever any such Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities of any series issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities of the same series surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Trustee shall require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of such
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1405 not
involving any transfer.
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The Company shall not be required (i) to issue, register the transfer of,
or exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on the day of the mailing of a
notice of redemption of Securities of that series selected for redemption under
Section 1104; or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any such Security being redeemed in part; or (iii) to register the transfer of
or exchange any Security during a period beginning five days before the date of
Maturity with respect to such Securities and ending on such date of Maturity.
Notwithstanding the foregoing and except as otherwise specified or
contemplated by Section 301, no Global Security shall be exchangeable pursuant
to this Section 305 or Sections 304, 906, 1107 and 1405 for Securities
registered in the name of, and no transfer of a Global Security of any series
may be registered to, any Person other than the Depositary for such Security or
its nominee unless (1) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if the Company
determines that the Depositary is unable to continue as Depositary and the
Company thereupon fails to appoint a successor Depositary; (2) the Company
executes and delivers to the Trustee a Company Order that such Global Security
shall be so exchangeable and the transfer thereof so registerable; (3) the
Company provides for such exchange pursuant to Section 301; or (4) there shall
have occurred and be continuing an Event of Default, or an event which after
notice or lapse of time would be an Event of Default, with respect to the
Securities evidenced by such Global Security. Upon the occurrence in respect of
any Global Security of any series of any one or more of the conditions specified
in clauses (1), (2), (3) or (4) of the preceding sentence or such other
conditions as may be specified as contemplated by Section 301 for such series,
such Global Security may be exchanged for Securities of the same series
registered in the names of, and the transfer of such Global Security may be
registered to, such Persons (including Persons other than the Depositary with
respect to such series and its nominees) as such Depositary shall direct.
Notwithstanding any other provisions of this Indenture, any Security of any
series authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Global Security of that series shall also be a
Global Security and shall bear the legend specified in the Officer's Certificate
or supplemental indenture specified in Section 201 except for any Security of
that series authenticated and delivered in exchange for, or upon registration of
transfer of, a Global Security pursuant to the preceding sentence.
In the event that a Global Security is deposited upon issuance with a
Depositary, it will be registered in the name of the Depositary or a nominee of
the Depositary (the "Global Security Registered Owner"). Payments in respect of
the principal of, premium (if any) and interest on any Securities registered in
the name of the Global Security Registered Owner will be payable to the Global
Security Registered Owner in its capacity as the registered owner of such Global
Security. The Company and the Trustee may treat the person in whose name(s) the
Securities, including the Global Security, are registered as the owner thereof
for the purpose of receiving such payments and for any and all other purposes
whatsoever. None of the Company, the Trustee, the Security Registrar, the Paying
Agent or any agent of the Company or the Trustee will have any responsibility or
liability for (i) any aspect of the records relating to or payments made on
account of the beneficial ownership interests of the Global Security by the
Depositary
20
or any of its participants, or for maintaining, supervising or reviewing any
records of the Depositary or any of its participants relating to the beneficial
ownership interests of the Global Security; (ii) the payments to the beneficial
owners of the Global Security of amounts paid to the Global Security Registered
Owner; or (iii) for any other matter relating to the actions and practices of
the Depositary or any of its participants. Neither the Company nor the Trustee
will be liable for any delay by the Global Security Registered Owner or the
Depositary or any of its participants in identifying the beneficial owners of
the Securities, and the Company and the Trustee may conclusively rely on, and
will be protected in relying on, instructions from the Global Security
Registered Owner or the Depositary for all purposes (including with respect to
the registration and delivery, and the respective principal amounts, of the
Securities to be issued).
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee or the Company,
together with such security, bond or indemnity as may be required by the Company
or the Trustee to save each of them and any agent of either of them harmless,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security; and (ii)
such security, bond or indemnity in a form satisfactory to both of them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous paragraphs of this Section,
in case any such mutilated, destroyed, lost or stolen Security has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any Security under this Section, the Company or the
Trustee shall 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), if any, connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security of the same series shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately and with any and all other Securities of that series duly issued
hereunder. A new Security shall have such legends as are on the old Security,
unless the Company provides otherwise.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS PRESERVED.
Principal, premium (if any), and interest due on a Security at Maturity or
upon redemption or repurchase will be paid by wire transfer in immediately
available funds against presentation and surrender of the Security by the Holder
thereof at the office of the Paying Agent, but only if appropriate wire transfer
instructions have been received in writing (or such other means as deemed
acceptable by the Paying Agent) by the Paying Agent not less than 15 days before
Maturity or the Redemption Date or Repurchase Date. In the event such
instructions are not received by such 15th day, such principal, premium (if
any), and interest due will be paid by check against such presentation and
surrender.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. All interest payments on any Security (other than interest
due at Maturity or on redemption or repayment) will be made by mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 301, to the address of such Person as it appears on
the Security Register. Notwithstanding the foregoing, any Holder of Securities
of any series which pay interest on the same Interest Payment Date and which are
in an aggregate principal amount in excess of $10,000,000 may elect to receive
payments of interest with respect to such series (other than interest due at
Maturity or on redemption or repayment) via wire transfer in immediately
available funds to a bank in New York, New York (or other bank approved by the
Paying Agent) by making arrangements therefor in writing (or such other means as
deemed acceptable by the Paying Agent) with the Paying Agent not later than the
Regular Record Date immediately preceding the applicable Interest Payment Date.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for
Securities of such series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of
22
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class posted prepaid,
to each Holder of Securities of such series at such Holder's address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of such
series in respect of which interest is in default are listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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 Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of, premium (if any), and
(subject to Sections 305 and 307) any interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and none of
the Company, the Trustee, or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
Global Security or impair, as between such Depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such Global Security.
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SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all such Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section. The Trustee is hereby directed by the Company to destroy all
cancelled Securities held by the Trustee or hold such Securities in accordance
with the Trustee's standard retention policy, and the Trustee shall provide the
Company with a certificate of a Responsible Officer certifying as to the
destruction or retention of such Securities, all in accordance with the
Trustee's customary procedures.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months. No interest
will accrue with respect to the 31st day of any month.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect with respect to any
series of Securities specified in a Company Request (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such series of Securities when:
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid for as provided in Section 306;
and (ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
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(B) all Securities of such series 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) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal, premium (if any), and interest to the date of
such deposit (in the case of such Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such series of Securities; and
(3) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series of Securities, the obligations of the Company and the
Trustee to the Holders of Securities of other series not so satisfied and
discharged, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614, and,
if money shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities of each
series 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, for all sums due or to become due
thereon for principal, premium (if any), and interest.
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ARTICLE FIVE
REMEDIES
SECTION 501. EVENT 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):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of that default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in the performance of
which or the breach of which is elsewhere in this Section specifically
dealt with or that has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and
continuance of that default or breach for a period of 30 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying the default or breach and requiring it to be remedied and
stating that the notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law; or (B) a decree or order adjudging the
Company bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of all or
substantially all of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated bankrupt or insolvent,
26
or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
of all or substantially all of its property, or the admission by it of an
assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided with respect to Securities of
that series.
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 in every such case the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount), plus any interest accrued on the Securities of such series to the date
of declaration, shall become immediately due and payable.
Upon payment (i) of (A) such principal amount; and (B) such interest; and
(ii) of interest on any overdue principal and overdue interest at the rate or
rates prescribed therefor in the Securities of such series (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of principal of and interest
on the Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in aggregate principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences (and the particular event on which the declaration of acceleration
is based shall no longer be grounds for a declaration of acceleration) if both:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest on all Outstanding
Securities of that series,
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(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor or in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor 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
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Securities of such series, the whole amount then due and payable on
such Securities for principal, premium (if any), and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal, premium (if any), and overdue interest, at the rate or rates
prescribed therefor in such series of Securities, and in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement
28
of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, adjustment, composition or other judicial proceeding
relative to the Company (or any other obligor upon the Securities of any
series), its property or its creditors, the Trustee (irrespective of whether the
principal of the Securities of any series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium (if any), or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise, to (i) 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 principal, premium (if any), and interest (if any) owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and (ii) collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of any series or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or any of the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities 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
29
money on account of principal, premium (if any) or interest, upon presentation
of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium (if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal, premium (if any) and
interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or
any other Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that same
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that same series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that same series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, premium (if any), and (subject to Section 307) any
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date or, in the case
of repurchase at the option of the Holder, on the Repurchase Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of Securities of any
series to exercise any right or remedy accruing upon any Event of Default with
respect to such series of Securities shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the applicable
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
31
conferred on the Trustee, with respect to the applicable Outstanding Securities
of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
the Outstanding Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of, premium (if any), or interest
on any Security of such series when due (other than amounts due and payable
solely upon acceleration pursuant to Section 502) unless theretofore paid
in full and cured in accordance with the terms of this Indenture, or
(2) in respect of a covenant or provision hereof which under Section
902 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. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder by such Holder's
acceptance of Securities shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, to the filing by any party litigant in
such suit other than the Trustee of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of, premium (if any), or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) With respect to Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, 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) With respect to Securities of any series, in case an Event of
Default with respect to the Securities of such series has occurred and is
continuing, the Trustee shall 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 individual would exercise or use under the circumstances
in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to Securities of any series in
good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of such series, determined
as provided in and subject to Section 512, 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
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(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of, premium (if any), or
interest on any security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders of Securities of such series; and
provided, however, 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 90 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. Except with respect to an Event of Default
pursuant to Section 501(1), (2) or (3), the Trustee shall not be charged with
knowledge of any default or Event of Default hereunder unless the written notice
thereof shall have been given to a Responsible Officer at the Corporate Trust
Office by the Company, a Paying Agent, any Holder or an agent of any Holder.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
-----------
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
pertaining to the Securities, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, 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 of the Securities except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder. 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 Paying Agent, any Authenticating Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company
35
with the same rights it would have if it were not Trustee, Paying Agent
Authenticating Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of any
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indentify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, willful misconduct
or bad faith on its own part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other
similar law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest (as
defined in this Section) with respect to the Securities of any series then,
within 90 days after ascertaining that it has such conflicting interest and
if the default (as defined in this Section) to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate
such conflicting interest or, except as otherwise provided below in this
Section, resign with respect to the Securities of that series in the manner
and with the effect hereinafter specified in this Article.
36
(b) In the event that the Trustee shall fail to comply with the provisions
of Subsection (a) of this Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration of such 90-day period,
transmit by mail to the Company and all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the Trustee shall be deemed to have
a conflicting interest with respect to the Securities of any series if the
Securities of such series are in default (as determined in accordance with the
provisions of Section 501, but exclusive of any period of grace or requirement
of notice) and
(1) the Trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in any
securities, of the Company are outstanding or is trustee for more than one
outstanding series of securities (as defined in this Section) under a
single indenture of the Company, unless such other indenture is a
collateral trust indenture under which the only collateral consists of
Securities issued under this Indenture; provided that there shall be
excluded from the operation of this Section other series of Securities
issued under this Indenture and any other indenture or indentures under
which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if any such other
indenture or indentures (and all series of securities issuable thereunder)
are wholly unsecured and rank equally with the Securities of such series,
and such other indenture or indentures (and such series) are qualified
under the Trust Indenture Act, except as otherwise set forth in Section
310(b)(1) of the Trust Indenture Act;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director and/or an executive officer of
the Trustee and a director and/or an executive officer of the Company, but
may not be at the same time an executive officer of both the Trustee and
the Company; (ii) if and so long as the number of directors of the Trustee
in office is more than nine, one additional individual may be a director
and/or an executive officer of the Trustee and a director of the Company;
and (iii) the Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
37
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture for which the Trustee is also trustee, or (ii) 10% or more
of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company;
(9) the Trustee owns, on the date of default under the Securities of
such series (as determined in accordance with the provisions of Section
501, but exclusive of any period of grace or requirement of notice) or any
anniversary of such default while such default upon the Securities of such
series remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or conservator, or
in any other similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this Subsection. As
to any such securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to the extent
that such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after the
dates of any such default upon the Securities of such series and annually
in each succeeding year that the Securities of such series remain in
default, the Trustee shall make a check of its holdings of such securities
in any of the above-mentioned capacities as of such date. If the Company
fails to make payment in full of the principal of, premium (if any), or
interest on any of the Securities of any series when and as the same
becomes due and payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration of
such 30-day period,
38
and after such date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee, with sole or joint
control over such securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this Subsection;
or
(10) except under the circumstances described in Subsections (1), (3),
(4), (5) or (6) of Section 613(b), the Trustee shall be or shall become a
creditor of the Company.
For purposes of paragraph (1) of this Subsection, the term "series of
securities" or "series" means a series, class, or group of securities
issuable under an indenture pursuant to whose terms holders of one such
series may vote to direct the indenture trustee, or otherwise take action
pursuant to a vote of such holders, separately from holders of another such
series; provided that "series of securities" or "series" shall not include
any series of securities issuable under an indenture if all such series
rank equally and are wholly unsecured.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraphs (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but
shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a person by one or more
banks, trust companies or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (ii) an
obligation shall be deemed to be "in default" when a default in payment of
principal shall have continued for 30 days or more and shall not have been
cured; and (iii) the Trustee shall not be deemed to be the owner or holder
of (A) any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(ii) above, or (B) any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or (C) any security
which it holds as agent for collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter," when used with reference to the Company,
means every person who, within one year prior to the time as of which the
determination is made, has purchased from the Company with a view to, or
has offered or sold for the Company in connection with, the distribution of
any security of the Company outstanding at such time, or has participated
or has had a direct or indirect participation in any such undertaking, or
has participated or has had a participation in the direct or indirect
underwriting of any such undertaking, but such term shall not include a
person whose
39
interest was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are currently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities of any
series.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entities the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount," when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
40
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or interest
or otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof; provided, however, that any voting securities of an issuer
shall be deemed outstanding if any person other than the issuer is
entitled to exercise voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
(f) Except in the case of a default in the payment of the principal
of, premium (if any) or interest on any of the Securities of any series, or in
the payment of any sinking fund installment, the Trustee shall not be required
to resign as provided by this Section if the Trustee shall have sustained the
burden of proving, on application to the Commission, and after opportunity for
hearing thereon, that (i) a default hereunder may be cured or waived during a
reasonable period and under the procedures described in such application and
(ii) a stay of the Trustee's duty to resign will not be inconsistent with the
interest of the Holders of the Securities of such series. The filing of such an
application shall automatically stay the performance of the duty to resign until
the Commission orders otherwise.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States or
of any state of the United States which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or examination by
federal or state authority. Such Trustee shall have a combined capital and
surplus of at least $10,000,000. If such Person publishes reports of condition
at least annually, pursuant
41
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. Neither the Company nor any
Person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee hereunder. 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 610. REGISTRATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving not less than 30 days prior written notice to the
Company specifying its intention to resign, the reason therefor, and specifying
the date on which the resignation shall become effective. Notwithstanding the
foregoing, unless the reason for such resignation is a conflict pursuant to
Section 608, then such Trustee must resign with respect to all Securities if the
Trustee resigns with respect to any series of Securities. If the instrument of
acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by the Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) The Trustee may be removed with respect to any or all series of
Securities at any time upon 30 days notice by the filing with it of an
instrument in writing signed on behalf of the Company by a duly authorized
officer of the Company specifying such removal and the date on which it is to
become effective.
(e) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security of any series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder who has been a bona fide Holder of a Security of any series at least
six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public
42
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 any series of Securities
or all Securities, or (ii) subject to Section 514, any Holder who has been
a bona fide Holder of a Security of any series for at least six months may,
on behalf of himself or herself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with
respect to such series of Securities or all Securities and the appointment
of a successor Trustee or Trustees.
(f) 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 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 611. 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 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself or herself 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.
(g) The Company shall give or cause to be given 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 to all Holders of Securities of such series in the manner provided in
Section 106. 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 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the
43
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments reasonably necessary for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution
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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 or on behalf of 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. In case
any Securities shall have not been authenticated by such predecessor Trustee,
any successor Trustee may authenticate and deliver such Securities in either its
own name or that of its predecessor Trustee, with full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (b) of this Section, if the Trustee of Securities
of any series shall be, or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company within three months prior to a default upon
Securities of such series, as defined in Subsection (c) of this Section, or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually and the Holders of the Securities of such series:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three-month period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of set-
off which the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the federal Bankruptcy Code (as defined
herein) or any other applicable federal or state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three-month period;
45
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three-month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default as defined in Subsection (c) of this Section
would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three-month period for
property held as security at the time of such substitution shall, to
the extent of the fair value of the property released, have the same
status as the property released, and, to the extent that any claim
referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-
existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall
be apportioned between the Trustee and the Holders of the Securities
of such series in such manner that the Trustee and such Holders
realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization
pursuant to the federal Bankruptcy Code or any other applicable
federal or state law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the
respective claims of the Trustee and such Holders dividends on claims
filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the federal Bankruptcy Code
or any other applicable federal or state law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used
in this paragraph, with respect to any claim, the term "dividends"
shall include any distribution with respect to such claim, in
bankruptcy or receivership or proceedings for reorganization pursuant
to the federal Bankruptcy Code or any other applicable federal or
state law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with
respect to the secured portion, if any, of such claim. The court in
which such bankruptcy, receivership, or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion between the
Trustee and such Holders, in accordance with the provisions of this
46
paragraph, the funds and property held in such special account and
proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration
in determining the fairness of the distributions to be made to the
Trustee and such Holders with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise the
value of any securities or other property held in such special account
or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of
such claims, or otherwise, to apply the provisions of this paragraph
as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such three-month period shall be subject to the
provisions of this Subsection as though such resignation or removal
had not occurred. If any Trustee has resigned or been removed prior to
the beginning of such three-month period, it shall be subject to the
provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which
would have given rise to the obligation to account if such
Trustee had continued as Trustee, occurred after the beginning of
such three-month period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders of Securities of the appropriate
series at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in cash transactions as defined in Subsection (c) of this
Section;
47
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities of such series or
upon the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(3) The term "self-liquidating paper" means any draft, ▇▇▇▇ of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating, or incurring of the
draft, ▇▇▇▇ of exchange, acceptance or obligation.
(4) The term "Company" means any obligor upon the Securities.
(5) The term "federal Bankruptcy Code" means the Bankruptcy Code,
Title 11 of the United States Code.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, a
copy of which instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a
48
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United Stated of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $10,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition of published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of securities may resign at any time
by giving written notice thereof to the Trustee and to the Company. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such Securities may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effects as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in substantially the following form:
49
This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
FIRST TRUST OF ILLINOIS,
NATIONAL ASSOCIATION
as Trustee
By:
---------------------------------
As Authenticating Agent
By:
---------------------------------
Authorized Signatory
50
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date (or, if there is no Regular Record Date relating to a series, semi-
annually on the dates set forth in or pursuant to the Board Resolution or
supplemental indenture with respect to such series), a list, in such form
as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of such date, and
(b) at such other times as the Trustee may reasonably 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 shall be the Security
Registrar, no such list need be furnished.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
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If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interest of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such opinion.
(c) Every Holder, by receiving and holding Securities, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
pursuant to a request made under Section 702(b).
(d) The Company agrees with the Trustee that the Trustee shall not be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 7.02(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 7.02(b).
SECTION 703. REPORTS BY TRUSTEE.
(a) The term "reporting date," as used in this Section, means April 15.
Within 60 days after the reporting date in each year (beginning with April 15,
1997), the Trustee shall transmit by mail to all Holders of Securities, as their
names and addresses appear in the Security Register, a brief report dated as of
such date in accordance with, and only if required under, Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall transmit by mail to all Holders of Securities, as
their names and addresses appear in the Security Register, a brief report with
respect to the matters specified in, and within the times required under,
Section 313(b) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with the Commission, each stock
exchange upon which the Securities are listed, and also with the Company. The
Company will notify the Trustee if and when Securities of any series are listed
on any stock exchange.
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SECTION 704. REPORTS BY COMPANY.
The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission; and
(4) deliver to the Trustee, forthwith upon becoming aware of any
default or defaults in the performance of any covenant, agreement or
condition contained in this Indenture, and in any event not less often than
annually, an Officer's Certificate specifying such default or defaults, or
the extent of the Company's compliance with all conditions and covenants
hereof (which compliance shall be determined without regard to any period
of grace or notice provided hereunder), as the case may be.
53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. CONSOLIDATIONS AND MERGES OF COMPANY AND CONVEYANCES PERMITTED
SUBJECT TO CERTAIN CONDITIONS
The Company shall not consolidate with, or sell or convey all or
substantially all of its assets to, or merge with or into any other person or
entity unless (i) either the Company shall be the continuing corporation, or the
successor shall be a corporation organized and existing under the laws of the
United States of America or a state thereof and the successor corporation shall
expressly assume the due and punctual payment of the principal of and interest
on all the Securities and the due and punctual performance and observance of all
of the covenants and conditions of the Company under this Indenture by
supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation; (ii) the Company or the successor corporation,
as the case may be, shall not, immediately after the merger or consolidation, or
the sale or conveyance, be in default in the performance of any such covenant or
condition; and (iii) after giving effect to the transaction, no event which,
after notice or lapse of time, would become an Event of Default shall have
occurred or be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.
In case of any such consolidation, merger, sale or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation shall be relieved of any further obligation under this Indenture and
the Securities. Such successor corporation thereupon 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 order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All the
Securities of any series so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities of that series
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, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
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SECTION 803. OFFICER'S CERTIFICATE AND OPINION OF COUNSEL.
The Trustee, subject to the provisions of Sections 601 and 603, may receive
an Officer's Certificate and an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale or conveyance, and any such assumption,
complies with the provisions of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by or
pursuant to one or more Board Resolutions, 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 and the Company, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities of any series in bearer form, registrable or not registrable as
to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities of any series in uncertificated form;
or
(4) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided,
however, that any such addition, change or elimination shall either (i) not
adversely affect the rights of the Holders of Outstanding Securities of any
series in any material respect, or (ii) not apply to any Outstanding
Securities of any series created prior to the execution of such
supplemental indenture where such addition, change or elimination has an
adverse effect on the rights of the Holders of such Outstanding Securities
in any material respect; or
(5) to secure the Securities of any series; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301;
55
(7) 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 611(b); or
(8) to cure any ambiguity or defect in and to correct or supplement
any provision in this Indenture or any Security of any series that may be
inconsistent with any other provision in this Indenture or in the Security
of such series, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided, however, that any such
action pursuant to this clause (8) shall not adversely affect the rights of
the Holders of Outstanding Securities of any series in any material
respect; or
(9) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect qualification of this
Indenture under the Trust Indenture Act, or under any similar federal
statute hereafter enacted, and to add to this Indenture such other
provisions as may be expressly permitted by the Trust Indenture Act; or
(10) to amend or supplement the restrictions on and procedures for
resale, attempted resale and other transfers of any series of Securities
(whether or not Outstanding) to reflect any change in applicable law or
regulation (or interpretation thereof) or in practices relating to the
resale or transfer of Restricted Securities generally.
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 Securities of all series at the time Outstanding
affected by such supplemental indenture (voting as one class), by the Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of each series affected thereby,
(1) extend the Stated Maturity of the principal of, or any installment or
principal of or interest on, any such Security, or reduce the principal amount
thereof or the rate of interest thereon or premium (if any), payable upon the
redemption thereof, or reduce the obligation of the Company to pay principal
amounts, 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 change any Place of Payment where,
or the coin or currency in which, any such Security of such series or any
principal, premium (if any), or interest thereon is payable or impair the right
to institute suit for the enforcement of any such payment on or after the due
date thereof (or, in the case of redemption, on or after the Redemption Date),
or
56
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
modifications or amendments to this Indenture or to the terms and
conditions of that series of Securities, or to approve any supplemental
indenture relating to such series, or the consent of whose Holders is
required for any waiver with respect to such series (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 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; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to the
"Trustee" and concomitant changes in this Section and Section 1007, or the
deletion of this provision, in accordance with the requirements of Sections
611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular previously created series of Securities, or
which modifies the rights of the Holders of Securities of such previously
created 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
such previously created series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES; OPINIONS.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
(except to the extent required in the case of a supplemental indenture entered
into under Section 901(9)) 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.
Except as provided in this Article, upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act if at that date the
Indenture shall then be qualified under the Trust Indenture Act.
SECTION 906. 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 Company, 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.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium (if
any) and interest on the Securities of that series in accordance with the terms
of the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
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 any Securities, it will, on or before each due date of the
principal of, premium (if any), or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal, premium (if any), or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or before each due date of the principal of, premium (if
any), or interest on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay such amount, such sum to be held as provided in the
following paragraph, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
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The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (i) hold all sums held by it for the
payment of the principal of, premium (if any), or interest on any Securities of
that series in trust for the benefit of the Holders of such Securities of that
series until such sums shall be paid to such Holders or otherwise disposed of as
herein provided; (ii) give the Trustee notice of any default by the Company (or
any other obligor upon any Securities of that series) in the making of any
payment of principal, premium (if any), or interest; and (iii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
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 direct the
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and
upon such payment by any Paying Agent to the Trustee, the Company and such
Paying Agent shall be released from all further liability with respect to such
sums.
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, premium (if any), or
interest on any Security of any series and remaining unclaimed for one year
after such principal, premium (if any), or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such deposited money, and all liability of the Company as trustee
thereof, shall thereupon cease.
SECTION 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, a statement signed
by the principal executive officer, the principal financial officer or the
principal accounting officer of the Company stating that in the course of the
performance by the signer of such officer's duties as an officer of the Company
such officer would normally obtain knowledge of any default by the Company in
the performance or fulfillment of any covenant, agreement or condition contained
in this Indenture, and stating whether such officer has obtained knowledge of
any such default, and, if so, specifying each such default of which the signer
has knowledge and the nature thereof.
SECTION 1005. DELIVERY OF CERTAIN INFORMATION.
At any time the Company is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, for the benefit of Holders from
time to time of any of the Securities which are not registered under the
Securities Act ("Exempt Securities"), upon request of a Holder of Exempt
Securities, the Company will furnish or cause to be furnished at its expense
Rule 144A
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Information to that Holder or to a prospective purchaser of the Exempt Security
designated by that Holder, as the case may be, unless at that time (1) the
Commission shall have waived such requirement in writing or otherwise taken the
position that subsection 144A(d)(4)(i) does not apply to the Company or (2) the
provision of such information shall no longer be required by law to effect
resales under Rule 144A under the Securities Act or otherwise to effect resales
without registration under the Securities Act. As used in this Section 1008
only, "Holder" shall include a holder of interest in a Global Security which is
an Exempt Security and prospective purchaser of an Exempt Security shall include
a prospective purchaser of an interest represented by a Global Security which is
an Exempt Security.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 45 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the principal amount of Securities of such series to be redeemed, the Redemption
Price, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest, if any (or, in the case of Original Issue Discount Securities,
original issue discount) accrued to the date fixed for redemption will be paid
as specified in such notice, and that on and after that date interest, if any,
thereon or on the portions thereof to be redeemed (or, in the case of Original
Issue Discount Securities, original issue discount) will cease to accrue. In the
case of any redemption of such Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities, the
Company shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If fewer than all the Securities of any series are to be redeemed (unless
all of the Securities of such series issued on the same day with the same terms
are to be redeemed), the particular Securities of such series to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series not
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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 (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than the Trustee) 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 such Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at such Holder's address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) the Redemption Price, if fewer than all the Outstanding
Securities of any series to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal amounts) of the
particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
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On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay on the Redemption Date the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any such Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium (if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in such Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF THIS ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, if such sinking fund is established
pursuant to Section 301, except as otherwise specified as contemplated by
Section 301 for Securities of such series.
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The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of any 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 made with respect to the Securities
of any series shall be applied to the redemption of the Securities of such
series as provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (i) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (ii) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable 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. Such Securities shall first be
applied to the sinking fund payment next due, and any excess shall be applied to
the following sinking fund payments in the order they are due.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered and credited. Not less than 30 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.
ARTICLE THIRTEEN
DEFEASANCE
SECTION 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE.
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If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, shall be applicable to the Securities of
such series, and the Company may at its option by or pursuant to Board
Resolution, at any time, with respect to such Securities of any series, elect to
have either Section 1302 or Section 1303 applied to the Outstanding Securities
of such series upon compliance with the conditions set forth in this Article
Thirteen.
SECTION 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on the date the conditions set forth in
Section 1304 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 the Outstanding Securities of such series
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expend of the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated of
discharged hereunder: (A) the rights of Holders of such Outstanding Securities
to receive, solely from the trust fund described in Section 1304 and as more
fully set forth in such Section, payments in respect of the principal of,
premium (if any), and interest on such Securities when such payments are due,
(B) the Company's obligations with respect to such Securities under Sections
304, 305, 306, 1002, 1003 and Article Fourteen and with respect to the Trustee
under Section 607, (C) the rights, powers, trusts, duties, and immunities of the
Trustee hereunder including pursuant to Section 607 hereof and (D) this Article
Thirteen. Subject to compliance with this Article Thirteen, the Company may
exercise its option under this Section 1302 notwithstanding the prior exercise
of its option under Section 1303 with respect to such Securities.
SECTION 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, if specified pursuant to
Section 301, the Company shall be released from its obligations under any
covenant with respect to the Outstanding Securities of such series on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance") and such Securities shall thereafter be deemed to be not
"Outstanding" for the purpose of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed Outstanding for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the Outstanding Securities of such series, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference in any such Section 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 Sections 501(4) or 501(7)
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or otherwise, as the case may be, but, except as specified above, the remainder
of this Indenture and such Securities shall be unaffected thereby.
SECTION 1304. CONDITIONS OF DEFEASANCE.
The following shall be the conditions to application of either Section 1302
or Section 1303 to the Outstanding Securities of or within a series:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen 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, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest, if any, 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, premium (if any), and interest, if
any, on such Securities, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of, premium (if any), and each installment of principal of,
premium (if any) and interest, if any, on the Outstanding Securities of
such series on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such series
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities.
(2) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default under Subsections 501(5) and (6)
with respect to any other series of Securities, at any time during the
period ending on the 123rd day after the date of such deposit or, if
longer, ending on the day following the expiration of the longest
preference period applicable to the Company in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period).
(3) 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.
(4) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
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(5) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance has not occurred.
(6) The Company delivers to the Trustee an Officer's Certificate
stating that all conditions precedent to the defeasance and discharge of
the Securities of such series as contemplated by this Article Thirteen have
been satisfied.
SECTION 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium (if any), and interest (if any), but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accounts 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 an equivalent defeasance or covenant
defeasance.
SECTION 1306. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article Thirteen by reason of any
legal proceeding or by reason of any order or judgment of any court or
government authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and Securities of
the defeased series shall be revived and reinstated as though no deposit had
occurred
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pursuant to this Article Thirteen until such time as the Trustee or any Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article Thirteen.
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDERS
SECTION 1401. APPLICABILITY OF ARTICLE.
Securities of any series which are repurchasable before their Stated
Maturity at the option of the Holders shall be repurchasable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1402. NOTICE OF REPURCHASE DATE.
Notice of any Repurchase Date with respect to Securities of any series
shall, unless otherwise specified by the terms of the Securities of any series,
be given by the Company not less than 45 nor more than 60 days prior to such
Repurchase Date to each Holder of Securities of such series in accordance with
Section 106.
The notice as to Repurchase Date shall state:
(1) the Repurchase Date;
(2) the Repurchase Price;
(3) the place or places where such Securities are to be surrendered
for payment of the Repurchase Price and the date by which Securities must
be so surrendered in order to be repurchased;
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right; and
(5) that exercise of the option to elect repurchase is irrevocable.
No failure of the Company to give the foregoing notice shall limit any Holder's
right to exercise a repurchase right.
SECTION 1403. DEPOSIT OF REPURCHASE PRICE.
On or prior to the Repurchase Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Repurchase Price of and
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(unless the Repurchase Date shall be an Interest Payment Date) accrued interest,
if any, on all of the Securities of such series which are to be repurchased on
that date.
SECTION 1404. SECURITIES PAYABLE ON REPURCHASE DATE.
The form of option to elect repurchase having been delivered as specified
in the form of Security for such series as provided in Section 201, the
Securities of such series so to be repurchased shall, on the Repurchase Date,
become due and payable at the Repurchase Price applicable thereto and from and
after such date (unless the Company shall default in the payment of the
Repurchase Price and accrued interest) such Securities shall cease to bear
interest. Upon surrender of any such Security for repurchase in accordance with
said notice, such Security shall be paid by the Company at the Repurchase Price
together with accrued interest to the Repurchase Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to such Repurchase
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any such Security shall not be paid upon surrender thereof for
repurchase, the principal (and premium, if any) shall, until paid, bear interest
from the Repurchase Date at the rate prescribed therefor in such Security.
SECTION 1405. SECURITIES REPURCHASED IN PART.
Any Security which by its terms may be repurchased in part at the option of
the Holder and which is to be repurchased only in part shall be surrendered at
any office or agency of the Company designated for that purpose pursuant to
Section 1002 (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 such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder, in aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Security so
surrendered.
ARTICLE FIFTEEN
CORPORATE OBLIGATION ONLY
SECTION 1501. INDENTURE AND SECURITIES SOLELY CORPORATE OBLIGATIONS.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, any supplemental indenture, or in any Security, because of
any indebtedness evidenced thereby, shall be had against any incorporator, or
against any past, present or future shareholder, employee, officer or director,
as such, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, under any rule of law, statute
or
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constitutional provision or by the enforcement of any assessment or penalty or
by any legal or equitable proceeding or otherwise, all such liability, whether
at common law, in equity, by any constitution, statute or otherwise, of
incorporators, shareholders, employees, officers or directors being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration of the issuance of the Securities.
First Trust of Illinois, National Association hereby accepts the trusts in
this Indenture upon the terms and conditions hereinabove set forth.
[signatures appear on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
ABC Rail Products Corporation
By:
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Title:
Attest:
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Title:
First Trust of Illinois,
National Association, as Trustee
By:
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Title:
Attest:
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Title:
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