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EXHIBIT 4.1
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ILLINOIS TOOL WORKS INC.
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
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INDENTURE
DATED AS OF NOVEMBER 1, 1986
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ILLINOIS TOOL WORKS INC.
CROSS REFERENCE SHEET*
[This Cross Reference Sheet shows the location in the Indenture of the
provisions inserted pursuant to Sections 310-318(a), inclusive, of the Trust
Indenture Act of 1939.]
SECTION OF
TRUST INDENTURE ACT INDENTURE
310(a)(1)(2)...................................................... 7.09
(3)....................................................... 7.14
(4)....................................................... Inapplicable
310(b)............................................................ 7.08 and 7.10
(b)(1)(A)(C)................................................. Inapplicable
310(c)............................................................ Inapplicable
311(a)(b)......................................................... 7.13
(c).......................................................... Inapplicable
312(a)............................................................ 5.01 and 5.02
(b)(c)....................................................... 5.02
313(a)(1)(2)(3)(4)(6)(7).......................................... 5.04
(5)....................................................... Inapplicable
(b)(1)....................................................... Inapplicable
(2)....................................................... 5.04
(c)(d)....................................................... 5.04
314(a)............................................................ 5.03
(b).......................................................... Inapplicable
(c)(1)(2).................................................... 14.05
(3)....................................................... Inapplicable
(d).......................................................... Inapplicable
(e).......................................................... 14.05
(f).......................................................... Inapplicable
315(a)(c)(d)...................................................... 7.01
(b).......................................................... 6.07
(e).......................................................... 6.08
316(a)(1)......................................................... 6.06 and 8.04
(2)....................................................... Inapplicable
(b).......................................................... 6.04
317(a)............................................................ 6.02
(b).......................................................... 4.04
318(a)............................................................ 14.08
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* The Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
PAGE
PARTIES...........................................................................................................1
RECITALS:
Purpose of Indenture.........................................................................................1
Compliance with legal requirements...........................................................................1
Purpose of and consideration for Indenture...................................................................1
Article One
Definitions
Section 1.01. Certain Terms Defined............................................................................1
Authorized Newspaper.............................................................................1
Bankruptcy Law...................................................................................2
Board of Directors...............................................................................2
Business Day.....................................................................................2
Certified Board Resolution.......................................................................2
Company..........................................................................................2
Company Direction................................................................................2
Corporate Trust Office...........................................................................2
Custodian........................................................................................3
Dollars and $....................................................................................3
Event of Default.................................................................................3
Government Obligations...........................................................................3
Holder...........................................................................................3
Indenture........................................................................................3
Interest Payment Date............................................................................4
Officers' Certificate............................................................................4
Opinion of Counsel...............................................................................4
Original Issue Discount Security.................................................................4
Outstanding......................................................................................4
Principal Property...............................................................................5
Record Date......................................................................................5
Responsible Officer..............................................................................5
Restricted Subsidiary............................................................................5
Security or Securities...........................................................................6
SEC..............................................................................................6
Sinking Fund.....................................................................................6
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture
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Stated Maturity....................................................................................6
Subsidiary.........................................................................................6
Trustee............................................................................................6
Trust Indenture Act of 1939 and TLA................................................................7
Section 1.02. Other Definitions..................................................................................7
Section 1.03. Incorporation by Reference of Trust Indenture Act of 1939..........................................7
Article Two
Issue, Description, Execution, Registration, Registration of
Transfer and Exchange of Securities
Section 2.01. Amount Unlimited. Establishment of Series.........................................................8
Section 2.02. Form of Securities and Trustee's Certificate of Authentication.....................................9
Section 2.03. Denomination, Authentication and Dating of Securities.............................................10
Section 2.04. Execution of Securities...........................................................................12
Section 2.05. Registration of Transfer and Exchange.............................................................13
Section 2.06. Temporary Securities..............................................................................14
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities...................................................14
Section 2.08. Cancellation of Surrendered Securities............................................................15
Section 2.09. Provisions of Indenture and Securities for the Sole Benefit of the Parties and the Holders........15
Section 2.10. Computation of Interest...........................................................................15
Section 2.11. Authenticating Agents.............................................................................15
Article Three
Redemption of Securities -
Sinking Fund
Section 3.01. Applicability of Article..........................................................................17
Section 3.02. Notice of Redemption; Selection of Securities.....................................................17
Section 3.03. When Securities Called for Redemption Become Due and Payable......................................18
Section 3.04. Sinking Fund......................................................................................19
Section 3.05. Use of Acquired Securities to Satisfy Sinking Fund Obligations....................................20
Section 3.06. Effect of Failure to Deliver Officers' Certificate or Securities..................................20
Section 3.07. Manner of Redeeming Securities....................................................................20
Section 3.08. Sinking Fund Moneys to Be Held as Security During Continuance of Event of Default; Exceptions.....21
Article Four
Particular Covenants of the Company
Section 4.01. Payments of Principal of (and Premium, If Any) and Interest, If Any, on Securities................21
Section 4.02. Maintenance of Offices or Agencies for Registration of Transfer, Exchange and
Payment of Securities .........................................................................22
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee............................................22
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Section 4.04. Duties of Paying Agents, etc......................................................................22
Section 4.05. Limitation on Liens...............................................................................23
Section 4.06. Limitation on Sale and Lease-Back.................................................................25
Section 4.07. Exempted Indebtedness.............................................................................25
Section 4.08. Statement by Officers as to Default...............................................................26
Section 4.09. Further Instruments and Acts......................................................................26
Article Five
Holders' Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee Information as to Names and Addresses of Holders.......................26
Section 5.02. Preservation of Information; Communications to Holders............................................27
Section 5.03. Reports by Company................................................................................27
Section 5.04. Reports by Trustee................................................................................27
Article Six
Remedies of the Trustee and Holders in Event of Default
Section 6.01. Events of Default.................................................................................27
Section 6.02. Collection of Indebtedness by Trustee, etc........................................................29
Section 6.03. Application of Moneys Collected by Trustee........................................................31
Section 6.04. Limitation on Suits by Holders....................................................................32
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights Not a Waiver of Default..............32
Section 6.06. Rights of Holders of Majority in Principal Amount of Securities of
Any Series to Direct Trustee and to Waive Default .............................................33
Section 6.07. Trustee to Give Notice of Defaults Known to It, But May Withhold Such
Notice in Certain Circumstances ...............................................................33
Section 6.08. Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee ..............................................................33
Section 6.09. Waiver of Stay or Extension Laws..................................................................34
Article Seven
Concerning the Trustee
Section 7.01. Certain Duties and Responsibilities...............................................................34
Section 7.02. Certain Rights of Trustee.........................................................................35
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Securities.....................................36
Section 7.04. Trustee, Paying Agent or Security Registrar May Own Securities....................................36
Section 7.05. Moneys Received by Trustee to Be Held in Trust....................................................37
Section 7.06. Compensation and Reimbursement....................................................................37
Section 7.07. Right of Trustee to Rely on an Officers' Certificate Where
No Other Evidence Specifically Prescribed .....................................................37
Section 7.08. Disqualification; Conflicting Interests...........................................................38
Section 7.09. Requirements for Eligibility of Trustee...........................................................38
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Section 7.10. Resignation and Removal of Trustee................................................................38
Section 7.11. Acceptance by Successor to Trustee................................................................39
Section 7.12. Successor to Trustee by Merger, Consolidation or Succession to Business...........................40
Section 7.13. Preferential Collection of Claims Against Company.................................................41
Section 7.14. Appointment of Additional and Separate Trustees...................................................41
Article Eight
Concerning the Holders
Section 8.01. Evidence of Action by Holders.....................................................................43
Section 8.02. Proof of Execution of Instruments and of Holding of Securities....................................44
Section 8.03. Who May Be Deemed Owner of Securities.............................................................44
Section 8.04. Securities Owned by Company or Controlled or Controlling Companies
Disregarded for Certain Purposes ..............................................................44
Section 8.05. Instruments Executed by Holders Bind Future Holders...............................................45
Article Nine
Holders' Meetings and Consents
Section 9.01. Purposes for Which Meeting May Be Called..........................................................45
Section 9.02. Manner of Calling Meetings........................................................................46
Section 9.03. Call of Meetings by Company or Holders............................................................46
Section 9.04. Who May Attend and Vote at Meetings...............................................................46
Section 9.05. Regulations May Be Made by Trustee................................................................46
Section 9.06. Manner of Voting at Meetings and Record to Be Kept................................................47
Section 9.07. Written Consent in Lieu of Meetings...............................................................48
Section 9.08. No Delay of Rights by Meeting.....................................................................48
Article Ten
Supplemental Indentures
Section 10.01. Purposes for Which Supplemental Indentures May Be Entered into Without Consent of Holders........48
Section 10.02. Modification of Indenture with Consent of Holders of a Majority in
Principal Amount of Securities...............................................................50
Section 10.03. Effect of Supplemental Indentures................................................................51
Section 10.04. Securities May Bear Notation of Changes by Supplemental Indentures...............................51
Article Eleven
Consolidation, Merger, Sale, Conveyance or Lease
Section 11.01. Company May Consolidate, etc., on Certain Terms..................................................51
Section 11.02. Securities to Be Secured in Certain Events.......................................................52
Section 11.03. Successor Corporation to Be Substituted..........................................................52
Section 11.04. Opinion of Counsel to Be Given Trustee...........................................................53
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Article Twelve
Satisfaction and Discharge of Indenture; Unclaimed Moneys
Section 12.01. Satisfaction and Discharge of Indenture..........................................................53
Section 12.02. Defeasance and Discharge of Securities or Certain Obligations....................................53
Section 12.03. Application by Trustee of Funds Deposited for Payment of Securities..............................56
Section 12.04. Repayment of Moneys Held by Paying Agent.........................................................57
Section 12.05. Repayment of Moneys Held by Trustee..............................................................57
Article Thirteen
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 13.01. Incorporators, Stockholders, Officers, Directors and Employees
of Company Exempt from Individual Liability...................................................57
Article Fourteen
Miscellaneous Provisions
Section 14.01. Successors and Assigns of Company Bound by Indenture.............................................58
Section 14.02. Acts of Board, Committee or Officer of Successor Corporation Valid...............................58
Section 14.03. Required Notices or Demands......................................................................58
Section 14.04. Indenture and Securities to Be Construed in Accordance with the Laws of the State of Illinois....58
Section 14.05. Officers' Certificate and Opinion of Counsel to Be Furnished upon
Application or Demand by the Company..........................................................59
Section 14.06. Payments Due on Holidays.........................................................................59
Section 14.07. Provisions Required by Trust Indenture Act of 1939 to Control....................................59
Section 14.08. Indenture May be Executed in Counterparts........................................................59
Section 14.09. Separability Clause..............................................................................59
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INDENTURE, dated as of the 1st day of. November, 1986 between Illinois
Tool Works Inc., a corporation incorporated under the laws of Delaware (the
"Company"), and The First National Bank of Chicago, a national banking
association duly organized and existing under the laws of the United States of
America (the "Trustee").
WHEREAS, for its lawful corporate purposes, 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 and other
evidences of indebtedness (hereinafter referred to as the "Securities"), to be
issued in one or more series in an unlimited amount as provided in this
Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement of the Company have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the premises and of the sum of One Dollar duly paid
by the Trustee to the Company at the execution and delivery of these presents,
the receipt whereof is hereby acknowledged, the Company and the Trustee covenant
and agree with each other, for the equal and proportionate benefit of all
Holders from time to time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The terms defined in this Section
1.01 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section
1.01:
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day on each business
day in each calendar week and of general circulation in Chicago, Illinois,
whether or not such newspaper is published on Saturdays, Sundays and legal
holidays. Whenever, under the provisions of this Indenture, two or more
publications of a notice or other communication are required or permitted, such
publications may be in the same or different authorized newspapers. If, because
of temporary or permanent suspension of publication or general circulation of
any newspaper or for any other reason, it is impossible or impracticable to
publish any notices required by this Indenture in the manner herein provided,
then such publication in lieu thereof or such other notice as shall be made with
the approval of the Trustee shall constitute a sufficient publication of such
notice.
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Bankruptcy Law:
The term "Bankruptcy Law" shall mean Title 11 of the U.S. Code or any
similar federal or state law for the relief of debtors.
Board of Directors:
The term "Board of Directors," when used with reference to the Company,
shall mean the Board of Directors of the Company or any committee of such Board
to which the powers of such Board have lawfully been delegated.
Business Day:
The term "business day" shall mean any day other than a Saturday or
Sunday and other than a day on which banking institutions in Chicago, Illinois,
or New York, New York, are authorized or obligated by law or executive order to
close.
Certified Board Resolution:
The term "Certified Board Resolution" shall mean one or more
resolutions certified by the Secretary or any Assistant Secretary of the Company
to have been duly adopted by the Board of Directors of, the Company and to be in
full force and effect on the date of such certification, which are delivered to
the Trustee.
Company:
The term "Company" shall mean Illinois Tool Works Inc. and, subject to
the provisions of Article Eleven, shall mean its successors and assigns from
time to time hereafter.
Company Direction:
The term "Company Direction" shall mean a written direction, order or
instruction, signed in the name of the Company by its Chairman or its Vice
Chairman or its President or its Chairman of the Executive Committee or any Vice
President and by its Treasurer or its Secretary or any Assistant Treasurer or
any Assistant Secretary and delivered to the Trustee.
Corporate Trust Office:
The term "Corporate Trust Office", or other similar term, shall mean
the principal office of the Trustee in Chicago, Illinois, at which at any
particular time its corporate trust business shall be principally administered,
or, if no such office is maintained, such other office of the Trustee as shall
be designated. The Corporate Trust Office on the date hereof is located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Division.
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Custodian:
The term "Custodian" shall mean any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Dollars and $:
The term "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
Event of Default:
The term "Event of Default" shall mean any event specified in Section
6.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
Government Obligations:
The term "Government Obligations" with respect to any series of
Securities shall mean direct noncallable obligations of the government which
issued the currency in which the Securities of that series are denominated,
noncallable obligations the payment of the principal of and interest on which is
fully guaranteed by such government, and noncallable obligations on which the
full faith and credit of such government is pledged to the payment of the
principal thereof and interest thereon.
Holder:
The term "Holder", with respect to a registered Security, shall mean
any person in whose name such Security shall be registered on the Security
Register, and, with respect to an unregistered Security, shall mean the bearer
thereof.
Indenture:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the terms and forms of particular series of
Securities established as contemplated hereunder; provided, however, that if at
any time more than one Trustee is serving as such under this instrument,
"Indenture" shall mean, with respect to any one or more series of Securities for
which any such Trustee is serving, this Indenture as originally executed or as
amended or supplemented as herein provided, exclusive, however, of any
provisions or terms which relate solely to one or more series of Securities for
which such Trustee is not serving, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted with respect to a
particular series of Securities executed and delivered after such Trustee had
become a Trustee hereunder but with respect to which series such Trustee was not
serving as Trustee.
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Interest Payment Date:
The term "interest payment date" shall mean the date on which an
instalment of interest on any series of Securities shall become due and payable,
as therein or herein provided.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by any
two of the Chairman, the Vice Chairman, the President, the Chairman of the
Executive Committee, any Vice President, the Secretary, any Assistant Secretary,
the Treasurer or any Assistant Treasurer of the Company, provided that one of
the officers signing the Officers' Certificate shall be the Chairman, the Vice
Chairman, the President, the Chairman of the Executive Committee, or any Vice
President (which Vice President, if executing any Officers' Certificate
delivered pursuant to Section 2.01, shall be the chief financial officer of the
Company, or, if no such Vice President exists, a Vice President having similar
responsibility as to financial matters). Each such certificate shall include
(except as otherwise provided in this Indenture) the statements provided for in
Section 14.05.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of, or counsel to, the Company or other
counsel. Each such opinion shall include (except as otherwise provided in this
Indenture) the statements provided for in Section 14.05.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Stated Maturity thereof
pursuant to Section 6.01.
Outstanding:
The term "outstanding" when used with reference to Securities of any
series, subject to the provisions of Section 8.04, shall mean, as of any
particular time, all Securities of such series authenticated by the Trustee and
delivered under this Indenture, except:
(a) Securities of such series theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities of such series or portions thereof for the
payment or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying
agent); provided that, if such Securities or portions thereof are to
be redeemed, notice of
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such redemption shall have been given as in Article Three provided or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(c) Securities of such series in lieu of or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.07, other than Securities as to
which the Trustee receives proof satisfactory to it that such Security
is held by a bona fide purchaser.
Principal Property:
The term "Principal Property" shall mean any manufacturing plant or
other facility owned or leased by the Company or any Subsidiary and located
within the continental United States of America or Hawaii, except any such plant
or facility which the Board of Directors by resolution declares is not of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as an entirety and which, when taken together with all
other plants and facilities as to which such a declaration has been so made, is
so declared by the Board of Directors to be not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety.
Record Date:
The term "Record Date" as used with respect to any interest payment
date shall mean the close of business on the 15th day of the month preceding the
month in which an interest payment date occurs, if such interest payment date is
the first day of such month, or the first day of the month in which an interest
payment date occurs, if such interest payment date is the 15th day of such
month, in each case whether or not a business day, or such other dates with
respect to a particular series of Securities as may be specified in the
instrument establishing such series.
Responsible Officer:
The term "responsible officer" when used with respect to the Trustee
shall mean the Chairman or Vice Chairman of the Board of Directors, the Chairman
or Vice Chairman of the Executive Committee of the Board of Directors, the
President, any Vice President, any Second or Assistant Vice President, the
Cashier, any Assistant Cashier, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Trust Officer, any Assistant 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 because of his knowledge of and familiarity with the particular
subject.
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary (i)
substantially all the property of which is located, or substantially all of the
business of which is carried on, within the continental United States of America
or Hawaii or which is incorporated under the laws of any
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state of the United States of America and (ii) which owns or leases a Principal
Property; provided, however, that such term shall not include any Subsidiary
which is principally engaged in leasing or financing installment receivables or
which is principally engaged in financing the operations of the Company and its
Subsidiaries outside the continental United States of America and Hawaii.
Security or Securities:
The terms "Security" or "Securities" shall have the meaning stated in
the recital of this Indenture and shall more particularly mean any Security or
such Securities, as the case may be, authenticated and delivered pursuant to
this Indenture; provided, however, that if at any time there is more than one
Trustee serving under this Indenture, "Securities" with respect to this
Indenture as to which such Trustee is serving shall have the meaning stated in
the recital and shall more particularly mean Securities authenticated and
delivered pursuant to this Indenture, exclusive of Securities of any series as
to which such Trustee is not serving as Trustee.
SEC:
The term "SEC" shall mean the United States Securities and Exchange
Commission.
Sinking Fund:
The term "Sinking Fund" shall mean any fund established by the Company
for redemption of the Securities of any series prior to Stated Maturity.
Stated Maturity:
The term "Stated Maturity", when used with respect to any Security,
shall mean the date on which the last payment of principal of such Security is
due and payable in accordance with the terms thereof.
Subsidiary:
The term "Subsidiary" shall mean any corporation at least a majority of
the outstanding securities of which having ordinary voting power to elect a
majority of the board of directors of such corporation (whether or not any other
class of securities has or might have voting power by reason of the happening of
a contingency) is at the time owned or controlled, directly or indirectly, by
the Company, or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
Trustee:
The term "Trustee" shall mean the Trustee named in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions hereof, and thereafter "Trustee" shall mean or include
all Trustees hereunder, and, subject to the
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provisions of Article Seven, shall also include its successors and assigns, and,
unless the context otherwise requires, shall also include any co-trustee or
co-trustees or separate trustee or trustees appointed pursuant to Section 7.14.
Trust Indenture Act of 1939 and TIA:
The terms "Trust Indenture Act of 1939" and "TIA" (except as herein
otherwise expressly provided) shall mean the Trust Indenture Act of 1939 as in
force on the date of this Indenture.
SECTION 1.02. Other Definitions. The terms listed below in this Section
1.02 (except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and any indenture
supplemental hereto shall have the respective meanings specified in the sections
of this Indenture set opposite the particular term:
DEFINED IN
TERM SECTION
---- -------
Consolidated Net Tangible Assets............................................................... 4.07
Debt........................................................................................... 4.05
Defaulted Interest............................................................................. 2.03
Funded Debt.................................................................................... 4.06
Liens.......................................................................................... 4.05
Mandatory Sinking Fund Payment................................................................. 3.04
Optional Sinking Fund Payment.................................................................. 3.04
Sale and Lease-Back Transaction................................................................ 4.06
Security Register and Security Registrar....................................................... 2.05
Value.......................................................................................... 4.06
SECTION 1.03. Incorporation by Reference of Trust Indenture Act of
1939. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. All terms not
defined in this Article I which are defined in the TIA, or which are by
reference therein defined in the United States Securities Act of 1933, as
amended, (except as herein otherwise expressly provided and unless the context
otherwise requires) shall have the meanings assigned to such terms in the TIA
and in such Securities Act as in force as of the date of this Indenture. The
following TIA terms used in the provisions of the TIA incorporated by reference
in this Indenture shall have the following meanings:
Commission:
The term "Commission" shall mean the SEC.
Indenture Securities:
The term "indenture securities" shall mean the Securities.
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Indenture to Be Qualified:
The term "indenture to be qualified" shall mean this Indenture.
Indenture Trustee or Institutional Trustee:
The terms "indenture trustee" or "institutional trustee" shall mean the
Trustee.
Obligor:
The term "obligor" with reference to indenture securities shall mean
the Company.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited. Establishment of Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. All Securities of
any one series shall be substantially identical except as to denomination and
except as the Company in an Officers' Certificate delivered pursuant to this
Section 2.01 or in any supplemental indenture may otherwise provide. The
Securities may bear interest at such lawful rate or rates, from such date or
dates, shall mature at such time or times, may be redeemable at such price or
prices and upon such terms, including, without limitation, out of proceeds from
the sale of other Securities, or other indebtedness of the Company, and may
contain and/or be subject to such other terms and provisions as shall be
determined by the Company prior to the issuance of such Securities in accordance
with the authority granted in one or more resolutions of the Board of Directors
and set forth in an Officers' Certificate or a supplemental indenture, which
instrument shall establish with respect to each series of Securities:
(1) the designation of the Securities of such series, which
shall distinguish the Securities of one series from all other
Securities:
(2) the limit upon the aggregate principal amount at Stated
Maturity of the Securities of such series which may be authenticated
and delivered under this Indenture (not including Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of other Securities of such series pursuant to
Sections 2.05, 2.06, 2.07, 3.02 or 10.04);
(3) the rate or rates at which the Securities of such series
shall bear interest, if any, or the formula by which interest shall
accrue, the dates from which interest shall
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accrue, the interest payment dates on which such interest shall be
payable, and the Record Date for the interest payable on any interest
payment date (if other than as provided herein);
(4) the Stated Maturity of the Securities of such series;
(5) the period or periods within which, the price or prices
at which, and the terms and conditions upon which, the Securities of
such series may be redeemed, in whole or in part, at the option of the
Company;
(6) the obligation, if any, of the Company to redeem or
purchase Securities of such series pursuant to a sinking, purchase or
analogous fund or at the option of the holder thereof and the period
or periods within which, the price or prices at which, and the terms
and conditions upon which, the Securities of such series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(7) if other than the principal amount at Stated Maturity,
the portion of the principal amount at Stated Maturity of the
Securities of such series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;
(8) if other than Dollars and denominations of $1,000 and any
integral multiple thereof, the currency or composite currencies and
denominations in which Securities of such series shall be issuable;
(9) the form of Security to be used to evidence ownership of
Securities of such series;
(10) any terms with respect to conversion of the Securities
of such series, warrants attached thereto or terms pursuant to which
warrants may exist;
(11) the place or places where the principal of (and premium,
if any) and interest, if any, on the Securities of such series shall
be payable;
(12) any additional offices or agencies maintained pursuant
to Section 4.02;
(13) whether the Securities of such series shall be issued as
registered Securities or as unregistered Securities, with or without
coupons;
(14) the applicability, if any, of Section 12.02; and
(15) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this
Indenture).
SECTION 2.02. Form of Securities and Trustee's Certificate of
Authentication. The Securities of each series shall be substantially in the form
established by or pursuant to one or
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more resolutions of the Board of Directors, with such specific terms, additions
or omissions as may be determined pursuant to an Officers' Certificate or a
supplemental indenture as contemplated in Section 2.01 hereof, in each case with
such letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of the
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage. The
Trustee's certificate of authentication to be borne by such Securities shall be
in the form set forth below:
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Securities of the series designated herein
issued under the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By
------------------------
Authorized Signature
SECTION 2.03. Denomination, Authentication and Dating of Securities.
The Securities of each series may be issued as registered Securities or, if
provided by the terms of the instrument establishing such series of Securities,
as unregistered Securities, with or without coupons. The Securities of each
series shall be issuable in denominations of $1,000 and any integral multiple of
$1,000, unless otherwise provided by the terms of the instrument establishing
such series of Securities. Each Security shall be dated as of the date of its
authentication.
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 Direction for
authentication and delivery of such Securities, and the Trustee shall thereupon
authenticate and deliver such Securities in accordance with such Company
Direction. Prior to the issuance of Securities of any series, the Trustee shall
be entitled to receive, and subject to Section 7.01, shall be fully protected in
relying upon:
(1) a Certified Board Resolution pursuant to which the
issuance of the Securities of such series is authorized;
(2) an executed supplemental indenture, if any;
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(3) an Officers' Certificate, if any, delivered in accordance
with Section 2.01 and an Officers' Certificate as to the absence of
any Event of Default or any event which with notice or lapse of time
or both could become an Event of Default; and
(4) an Opinion of Counsel of the Company which in substance
shall state that:
(i) the form and the terms of the Securities of such
series have been established in conformity with the
provisions of this Indenture;
(ii) the Securities of such series have been duly
authorized, and, when executed and authenticated in
accordance with the provisions of this Indenture and subject
to any other conditions specified in such Opinion of Counsel,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of this Indenture;
(iii) the registration statement, if any, relating to
the Securities of such series and any amendments thereto has
become effective under the Securities Act of 1933 and to the
best knowledge of such counsel, no stop order suspending the
effectiveness of such registration statement, as amended, has
been issued and no proceedings for that purpose have been
instituted or threatened;
(iv) no consent, approval, authorization or order of
any court or governmental agency or body in the United States
is required for the issuance of the Securities of such
series, except such as have been obtained and such as may be
required under the blue sky laws of any jurisdiction in the
United States in connection with the purchase and
distribution of the Securities of such series;
(v) neither the issue nor sale of the Securities of
such series will conflict with, result in a breach of or
constitute a default under the terms of any indenture or
other agreement or instrument known to such counsel and to
which the Company or any of its Subsidiaries is a party or is
bound, or any order or regulation known to such counsel to be
applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or any of its
Subsidiaries; and
(vi) the authentication and delivery of the
Securities of such series by the Trustee in accordance with
the Company Direction so to do, and the Company's execution
and delivery of the Securities of such series, will not
violate the terms of this Indenture.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of such series (A) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken; or (B) if the Trustee in
good faith by its board of directors or trustees, executive committee or a trust
committee of directors or trustees and/or vice presidents shall
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determine that such action would expose the Trustee to personal liability to
Holders of outstanding Securities of any series.
So long as there is no existing default in the payment of interest on
registered Securities of any series, all such Securities authenticated by the
Trustee after the close of business on the Record Date for the payment of
interest on any interest payment date relating thereto and prior to such
interest payment date shall bear interest from such interest payment date;
provided, however, that if and to the extent that the Company shall default in
the interest due on such interest payment date, then any such Securities shall
bear interest from the next preceding interest payment date relating to such
Security with respect to which interest has been paid or duly provided for on
such Securities, or if no interest has been paid or duly provided for on such
Securities, from the date from which interest shall accrue as such date is set
forth in the instrument establishing the terms of such Securities.
The person in whose name any Security is registered at the close of
business on any Record Date with respect to any interest payment date shall be
entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Security upon any registration and
transfer or exchange thereof subsequent to such Record Date and prior to such
interest payment date, except if and to the extent the Company shall default in
the payment of the interest due on such interest payment date, in which case
such defaulted interest (herein called "Defaulted Interest") shall be paid to
the persons in whose names outstanding Securities of such series are registered
at the close of business on a subsequent record date, which shall not be less
than five business days preceding the date of payment of such Defaulted Interest
established for such purpose by notice given by mail by or on behalf of the
Company to Holders of such Securities not less than 15 days preceding such
subsequent record date. Such notice shall be given to the persons in whose names
such outstanding Securities of such series are registered at the close of
business on the third business day preceding the date of the mailing of such
notice.
SECTION 2.04. Execution of Securities. The Securities and coupons
appertaining thereto, if any, shall be signed on behalf of the Company by its
Chairman or its Vice Chairman or its President or its Chairman of the Executive
Committee or any Vice President and by its Secretary or any Assistant Secretary
under its corporate seal. Such signatures may be the manual or facsimile
signatures of the present or any future such authorized officers and may be
imprinted or otherwise reproduced on the Securities and such coupons. The seal
of the Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities and such coupons.
Only such Securities as shall bear thereon a Trustee's certificate of
authentication substantially in the form provided in Section 2.03, signed
manually by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. The Trustee's certificate of
authentication on any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Securities or such coupons shall cease to be such officer before the Securities
or such coupons so signed shall have
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been authenticated by the Trustee and delivered or disposed of by the Company,
such Securities and such coupons nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Securities and such coupons
had not ceased to be such officer of the Company; and any Security or such
coupons may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Security or such coupons, shall be the proper
officers of the Company, although at the date of such Security or such coupons
or of the execution of this Indenture any such person was not such officer.
SECTION 2.05. Registration of Transfer and Exchange. The Company shall
keep, at an office or agency maintained by the Company in accordance with the
provisions of Section 4.02, a register for each series of registered Securities
(such register being herein referred to as the "Security Register"), in which,
subject to such reasonable regulations as it may prescribe, the Company shall
register Securities of such series and shall register the transfer of such
Securities as in this Article Two provided. At all reasonable times the Security
Register shall be open for inspection by the Trustee. Upon due presentment for
registration of transfer of any such Security at such office or agency, or such
other offices or agencies as the Company may designate, the Company shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Security or Securities of authorized
denominations, of the same series and of like aggregate principal amount at
Stated Maturity.
Unless and until otherwise determined by or pursuant to the Company by
resolution of its Board of Directors, the Security Register for the purpose of
registration, exchange or registration of transfer of registered Securities
shall be kept at the Corporate Trust Office and, for this purpose, the Trustee
shall be designated the "Security Registrar".
At the option of the Holder, Securities of any series may be exchanged
for Securities of the same series of like aggregate principal amount at Stated
Maturity and of other authorized denominations. Securities to be so exchanged
shall be surrendered at the offices or agencies to be maintained by the Company
as provided in Section 4.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Security or Securities which
the Holder making the exchange shall be entitled to receive.
All Securities presented or surrendered for registration of transfer,
exchange, redemption or payment shall (if so required by the Company or the
Security Registrar) be duly endorsed or be accompanied by a written instrument
or instruments of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder or his attorney duly authorized in
writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Securities of any series for a period of 15 days next
preceding any selection of Securities of such series to be redeemed, or (b) to
register the transfer of or exchange any Securities of such series
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selected, called or being called for redemption in whole or in part except, in
the case of any security to be redeemed in part, the portion thereof not so to
be redeemed.
SECTION 2.06. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and deliver and the Trustee, upon
Company Direction, shall authenticate and deliver temporary Securities (printed,
lithographed or typewritten), of any authorized denomination, and substantially
in the form of the definitive Securities, but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Temporary Securities may be issued without a recital
of the specific redemption prices, if any, applicable to such Securities, and
may contain such reference to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. The Company
shall execute and furnish definitive Securities as soon as practicable and
thereupon any or all temporary Securities may be surrendered in exchange
therefor at the Corporate Trust Office, and the Trustee shall authenticate and
deliver in exchange for such temporary Securities a like aggregate principal
amount at Stated Maturity of definitive Securities of the same series. Until so
exchanged, the temporary Securities shall be entitled to the same benefits under
this Indenture as definitive Securities authenticated and delivered hereunder.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In case
any temporary or definitive Security and, in the case of a definitive Security,
coupons appertaining thereto, if any, shall become mutilated or be destroyed,
lost or stolen, the Company in its discretion may execute, and upon its request
the Trustee shall authenticate and deliver, a new Security or such coupons of
the same series bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Security or such coupons, or in lieu of and
in substitution for the Security or such coupons so destroyed, lost or stolen.
In every case, the applicant for a substituted Security or such coupons shall
furnish to the Company and to the Security Registrar and any paying agent, such
security or indemnity as may be required by them to save each of them harmless
from all risk, however remote, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and to the Security Registrar
and any paying agent, evidence to their satisfaction of the destruction, loss or
theft of such Security or such coupons and of the ownership thereof. The Trustee
may authenticate any such substituted Security and deliver the same upon Company
Direction. Upon the issuance of any substituted Security or such coupons, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Security which has matured or is about
to mature or which has been called for redemption shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substituted
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish the Company and any paying agent with such security or indemnity
as either may require to save it harmless from all risk, however remote, and, in
case of destruction, loss or theft, evidence to the satisfaction of the Company
of the destruction, loss or theft of such Security and of the ownership thereof.
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Every substituted Security of any series or coupon issued pursuant to
the provisions of this Section 2.07 by virtue of the fact that any Security or
coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
or coupon shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of such series or coupons duly issued and delivered hereunder. All Securities
and coupons shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and coupons, and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. Cancellation of Surrendered Securities. All Securities
surrendered for payment, redemption, registration of transfer or exchange, and
all coupons surrendered for payment, shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee for cancellation by it, or, if
surrendered to the Trustee, shall be cancelled by it, and all Securities
delivered to the Trustee in discharge or satisfaction in whole or in part of any
Sinking Fund payment (referred to in Section 3.04) shall be cancelled by the
Trustee and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. On request of the Company,
the Trustee shall deliver to the Company cancelled Securities and coupons held
by the Trustee. With the consent of the Company, the Trustee may destroy
cancelled Securities and coupons and deliver a certificate of destruction to the
Company. If the Company shall acquire any of the Securities or coupons, however,
such acquisition shall not operate as a redemption or satisfaction of the
indebtedness or rights represented by such Securities or coupons unless and
until the same are delivered or surrendered to the Trustee for cancellation.
SECTION 2.09. Provisions of Indenture and Securities for the Sole
Benefit of the Parties and the Holders. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and the Holders of
the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained, all its covenants, conditions and provisions being for the sole
benefit of the parties hereto and the Holders.
SECTION 2.10. Computation of Interest. Except as otherwise specified as
contemplated by Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 2.11. Authenticating Agents. The Trustee shall, if requested in
writing so to do by the Company, promptly appoint an agent or agents of the
Trustee who shall have authority to authenticate Securities of any series in the
name and on behalf of the Trustee. Such appointment by the trustee shall be
evidenced by a certificate executed by a Responsible Officer of the Trustee
delivered to the Company prior to the effectiveness of such appointment
designating such agent or agents and stating that all appropriate corporate
action has been taken by the Trustee in connection with such appointment.
Wherever reference is made in this Indenture to the
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authentication of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent.
Any such authenticating agent shall be an agent acceptable to the
Company and shall at all times be a corporation which is organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to act as authenticating agent, having a combined
capital and surplus of at least $1,000,000, and subject to supervision or
examination by Federal or State authority.
An authenticating agent may at any time resign with respect to one or
more series of Securities by giving written notice of resignation to the Trustee
and to the Company. The Trustee may at any time terminate the agency of an
authenticating agent with respect to one or more series of Securities by giving
written notice of termination to such authenticating agent and to the Company.
Upon receiving such notice of resignation or upon such termination, or in case
at any time an authenticating agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee promptly may appoint a
successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent herein. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to 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 7.06.
The provisions of Sections 7.02, 7.03 and 7.04 shall be applicable to
any authenticating agent.
Pursuant to each appointment of an authenticating agent made under this
Section, the Securities of each series covered by such appointment may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in substantially the following form:
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(ALTERNATE FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION)
This is one of the Securities of the series designated herein issued
under the within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO, AS TRUSTEE
By
-----------------------------
AUTHENTICATING AGENT
By
-----------------------------
AUTHENTICATING AGENT
ARTICLE THREE
REDEMPTION OF SECURITIES - SINKING FUND
SECTION 3.01. Applicability of Article. The Company may become
obligated, or reserve the right, to redeem and pay, prior to Stated Maturity,
all or any part of the Securities of any series, either by optional redemption,
Sinking Fund or otherwise, by provision therefor in the instrument establishing
such series of Securities pursuant to Section 2.01 or in the Securities of such
series. Redemption of any series shall be made in accordance with the terms of
such Securities and to the extent that this Article does not conflict with such
terms, in accordance with this Article.
SECTION 3.02. Notice of Redemption; Selection of Securities. In case
the Company shall exercise the right or be obligated to redeem Securities as
provided for in the first sentence of Section 3.01, it shall fix a date for
redemption (unless, by the terms of the instrument establishing such series of
Securities or the terms of such Securities, such date is fixed) and it, or, at
its request the Trustee, in the name of and at the expense of the Company, shall
give notice of such redemption to the Holders of the Securities to be redeemed
as a whole or in part, with respect to registered Securities, by mailing a
notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Security Register and, with respect to unregistered Securities, by publishing in
an authorized newspaper notice of such redemption on two separate days, each of
which is not less than 30 nor more than the 60 days prior to the date fixed for
redemption. Any notice which is mailed or
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published, as the case may be, in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
actually receives such notice. In any case, failure duly to give notice by mail,
or any defect in the notice, to the Holder of any registered Security of any
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impractical to mail notice of any event to Holders of
registered Securities when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Each such notice of redemption shall specify the designation of the
series of the Securities to be redeemed, the date fixed for redemption and the
redemption price at which Securities are to be redeemed, and shall state that
payment of the redemption price of the Securities or portions thereof to be
redeemed will be made at the offices or agencies to be maintained by the Company
in accordance with the provisions of Section 4.02 upon presentation and
surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in such notice, and that, on and after such
date, interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all the Securities of any series are to be redeemed, the
notice to the Holders of Securities to be redeemed shall specify the Securities
to be redeemed. In case any Security is to be redeemed in part only, such notice
shall state the portion of the principal amount thereof to be redeemed, and
shall state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of the same series in authorized
denominations and in a principal amount at Stated Maturity equal to the
unredeemed portion thereof will be issued.
If less than all the Securities of any series are to be redeemed, the
Company shall give the Trustee written notice, at least 60 days (or such shorter
period acceptable to the Trustee) in advance of the date fixed for redemption,
as to the aggregate principal amount at Stated Maturity of Securities of such
series to be redeemed, which shall be an integral multiple of the minimum
authorized denomination of such series, and thereupon the Trustee shall select,
in such manner as it shall deem appropriate and fair, the Securities of such
series to be redeemed in whole or in part and shall thereafter promptly notify
the Company in writing of the numbers of the Securities so to be redeemed and,
in the case of Securities to be redeemed in part only, the principal amount at
Stated Maturity so to be redeemed.
SECTION 3.03. When Securities Called for Redemption Become Due and
Payable. If the giving of notice of redemption shall have been completed as
provided in Section 3.02, the Securities or portions of Securities specified in
such notice shall become due and payable on the date and at the place stated in
such notice at the applicable redemption price, together with interest accrued
to the date fixed for redemption, and on and after such date fixed for
redemption (unless the Company shall default in the payment of such Securities
at the redemption price, together with interest accrued to the date fixed for
redemption) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue. On presentation and
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surrender of such Securities on or after the date fixed for redemption at the
place of payment specified in such notice, such Securities shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued to the date fixed for redemption; provided, however, that
instalments of interest becoming due on the date fixed for redemption on
Securities which are in registered form shall be payable to the Holders of such
Securities or of one or more previous such Securities evidencing all or a
portion of the same debt as that evidenced by such particular Securities,
registered as such on the relevant Record Dates according to their terms and the
provisions of Section 2.03.
Upon presentation of any Security which is redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, at the expense of the Company, a new Security or
Securities of the same series in authorized denominations and in a principal
amount at Stated Maturity equal to the unredeemed portion of the Security so
presented.
SECTION 3.04. Sinking Fund. In the event that the instrument
establishing the terms of a particular series shall provide for a Sinking Fund,
the Company covenants that as and for a Sinking Fund for the redemption of
Securities of such series, so long as any of the Securities of such series are
outstanding:
(a) It will pay to the Trustee or to a paying agent (or, if
the Company is acting as its own paying agent, segregate and hold in
trust as provided in Section 4.04) on or before each date set forth as
a Sinking Fund payment date in the instrument establishing such series,
a sum in cash sufficient to retire on each such date, at the Sinking
Fund redemption price provided for in such instrument and upon the
conditions, if any, applicable thereto as specified in such instrument,
the principal amount of such Securities as specified in such
instrument. Each such date is herein called a "Sinking Fund payment
date", and each sum payable as provided in this paragraph (a) is herein
called a "mandatory Sinking Fund payment".
(b) If the instrument establishing any series of Securities so
provides, the Company may elect to pay to the Trustee or to a paying
agent (or, if the Company is acting as its own paying agent, segregate
and hold in trust as provided in Section 4.04) on or before any Sinking
Fund payment date with respect to a particular series of Securities, an
additional sum in cash sufficient to retire on such Sinking Fund
payment date, at the Sinking Fund redemption price, up to any
additional principal amount of Securities set forth in such instrument.
Any sum payable as provided in this paragraph (b) is herein called an
"optional Sinking Fund payment". Any such election by the Company shall
be evidenced by an Officers' Certificate (which shall conform to
Section 14.05), delivered to the Trustee not later than 60 days (or
such shorter period acceptable to the Trustee) preceding such Sinking
Fund payment date, which Certificate shall set forth the amount of the
optional Sinking Fund payment which the Company then elects to pay. The
Company's election, so evidenced, shall be irrevocable and the Company
shall, upon delivery of such Certificate to the Trustee, become bound
to pay or segregate and hold in trust as aforesaid on or before such
Sinking Fund payment date the amount specified in
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such Certificate. Unless otherwise provided in the instrument
establishing such series, any such right to make an optional Sinking
Fund payment shall be noncumulative and shall in no event relieve the
Company of its obligation set forth in paragraph (a) of this Section
3.04.
All moneys paid or segregated and held in trust pursuant to this
Section 3.04 shall be applied on the Sinking Fund payment date in respect of
which such payment or segregation was made, to the redemption of Securities as
provided in this Article Three.
SECTION 3.05. Use of Acquired Securities to Satisfy Sinking Fund
Obligations. In lieu of making all or any Sinking Fund payment in cash as may be
required by Section 3.04(a), the Company may, not later than 60 days (or such
shorter period acceptable to the Trustee) preceding any applicable Sinking Fund
payment date relating to a particular series of Securities, deliver to the
Trustee for cancellation Securities of such series theretofore acquired by the
Company (otherwise than through the use of Sinking Fund moneys pursuant to
Section 3.07) and not theretofore made the basis for the reduction of any
Sinking Fund payment with respect to such series, accompanied by an Officers'
Certificate (which shall conform to Section 14.05) stating the Company's
election to use such Securities to reduce the amount of such Sinking Fund
payment with respect to such series (specifying the amount of the reduction of
each such payment) and certifying that such Securities have not theretofore been
made the basis for a reduction of any Sinking Fund payment with respect to such
series. Securities so delivered shall be credited against the Sinking Fund
payment due on such Sinking Fund payment date at the Sinking Fund redemption
price thereof.
SECTION 3.06. Effect of Failure to Deliver Officers' Certificate or
Securities. In case of a failure of the Company, at or before the time provided
above, to deliver any Officers' Certificate as may be required by Section 3.05,
together with any Securities of the particular series required by Section 3.05,
the Company shall not be permitted to make any such reduction of the amount of
the Sinking Fund payment with respect to such series payable on such Sinking
Fund payment date.
SECTION 3.07. Manner of Redeeming Securities. The Securities of any
series to be redeemed from time to time through the operation of any Sinking
Fund relating to such series, as in Section 3.04 provided, shall be selected by
the Trustee for redemption in the manner provided in Section 3.02 and notice
thereof shall be given by the Trustee to the Company, and the Company hereby
irrevocably authorizes the Trustee, in the name of and at the expense of the
Company, to give notice on behalf of the Company of the redemption of such
Securities, all in the manner and with the effect in this Article Three
specified, except that, in addition to the matters required to be included in
such notice by Section 3.02, such notice shall also state that the Securities
therein designated for redemption are to be redeemed through operation of such
Sinking Fund. Such Securities shall be so redeemed and paid in accordance with
such notice in the manner and with the effect provided in Sections 3.02 and
3.03.
Notwithstanding the foregoing, if at any time the amount of cash to be
paid into any Sinking Fund with respect to a particular series of Securities on
any next succeeding Sinking
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Fund payment date for such series, together with any unused balance of any
preceding Sinking Fund payment or payments with respect to such series which
shall not, in any case, include funds held by the Trustee for Securities of such
series which previously have been called for redemption, shall not exceed in the
aggregate $100,000, the Trustee, unless requested by the Company, shall not
select Securities for or give notice of the redemption of Securities through the
operation of the Sinking Fund with respect to such series on the next succeeding
Sinking Fund payment date. Such unused balance of moneys deposited in the
Sinking Fund with respect to a particular series of Securities shall be added to
the next Sinking Fund payment for such series to be made in cash or, at the
request of the Company, shall be applied at any time or from time to time to the
purchase of Securities of such series, by public or private purchase, in the
open market or otherwise.
SECTION 3.08. Sinking Fund Moneys to Be Held as Security During
Continuance of Event of Default; Exceptions. Unless all Securities of any series
then outstanding are to be redeemed, neither the Trustee nor any paying agent
shall redeem any Securities of such series with Sinking Fund moneys if such
person shall at the time have knowledge of the continuance of any Event of
Default with respect to such series, except that where the mailing or
publication of notice of redemption of any such Securities shall theretofore
have been made, the Trustee or any paying agent, if sufficient funds shall have
been deposited with it for such purpose, shall redeem such Securities. However,
the Company itself shall not redeem any such Securities with Sinking Fund moneys
during the continuance of any Event of Default with respect to such series. The
Trustee shall not mail or publish any notice of redemption if it shall at the
time have knowledge of the continuance of any Event of Default with respect to
such series. Except as aforesaid, any moneys in the Sinking Fund with respect to
such series at such time and any moneys thereafter paid into the Sinking Fund
shall during such continuance be held as security for the payment of all
Securities of that series; provided, however, that in case such Event of Default
with respect to such series shall have been waived as permitted by this
Indenture or otherwise cured, such moneys shall thereafter be held and applied
in accordance with the provisions of this Article Three.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payments of Principal of (and Premium, If Any) and
Interest, If Any, on Securities. The Company will duly and punctually pay or
cause to be paid the principal of (and premium, if any) and interest, if any, on
Securities of each series at the place, at the time or times and in the manner
provided in the instrument establishing such series and in the Securities of
such series. The interest on the Securities, if any, shall be payable (subject
to the provisions of Section 2.03) only to or upon the written order of the
Holders thereof or, in the case of unregistered Securities with coupons, the
Holders of coupons relating thereto. Any instalment of interest on registered
Securities of any series may at the Company's option be paid by mailing checks
for such interest payable to or upon the written order of the person entitled
thereto pursuant to Section 2.03 to the address of such person as it appears on
the Security Register.
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SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Securities. As long as any of the Securities
of any series remain outstanding, the Company will maintain one or more offices
or agencies in Chicago, Illinois, and at such other locations as the Company may
from time to time designate for any series of Securities, where such Securities
may be presented for registration of transfer and exchange as in this Indenture
provided, where such Securities may be presented for payment and where notices
and demands to or upon the Company in respect of such Securities or of this
Indenture may be served. The Corporate Trust Office shall be such office in
Chicago, Illinois, and the Trustee shall be the agent of the Company in such
city for all of the foregoing purposes unless the Company shall designate and
maintain some other office and agency for such purposes and give the Trustee
written notice of the location thereof. The Company will give to the Trustee
notice of the location of each such office or agency and of any change of
location thereof.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee for any one or more series of Securities, will appoint, in the manner
provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee with respect to each series of Securities hereunder.
SECTION 4.04. Duties of Paying Agents, etc. (a) The Company shall cause
each paying agent, if any, other than the Trustee, for any series of Securities,
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.04, that:
(1) it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Securities of such series (whether such sums have been paid to it by
the Company or by any other obligor on the Securities of such series)
in trust for the benefit of the Holders of the Securities of such
series;
(2) it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of (or premium, if any) or interest
on the Securities of such series when the same shall be due and
payable; and
(3) it will at any time during the continuance of an Event of
Default with respect to such series of Securities, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held
by it as such agent.
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
(and premium, if any) or interest on Securities of such series, deposit with
such paying agent or agents a sum sufficient to pay such principal (and premium,
if any) or interest on such Securities so becoming due.
(b) If the Company shall act as its own paying agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on the
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Securities of such series, set aside, segregate and hold in trust for the
benefit of the Holders of the Securities of such series a sum sufficient to pay
such principal (and premium, if any) or interest on such Securities so becoming
due. The Company will promptly notify the Trustee of any failure by the Company
to take such action or the failure by any other obligor on the Securities of
such series to make any payment of the principal of (or premium, if any) or
interest on the Securities of such series when the same shall be due and
payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 4.04, 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.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
the provisions of Sections 12.04 and 12.05.
SECTION 4.05. Limitation on Liens. Subject to the provisions of Article
Twelve (to the extent they are applicable to the Securities of any series), the
Company will not, nor will it permit any Restricted Subsidiary to, issue, assume
or guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (hereinafter, "Debt") secured by a mortgage,
security interest, lien, pledge or other encumbrance (hereinafter, "liens") upon
any Principal Property or upon any shares of stock or indebtedness of any
Restricted Subsidiary (whether such Principal Property, shares of stock or
indebtedness are now owned or hereafter acquired) without in any such case
effectively providing concurrently with such issuance, assumption, or guarantee
that the Securities (together with, if the Company so determines, any other
indebtedness or obligation then existing and any other indebtedness or
obligation, thereafter created, ranking equally with the Securities) shall be
secured equally and ratably with (or prior to) such Debt so long as such Debt
shall be so secured, except that the foregoing provisions shall not apply to:
(a) Liens affecting property of a corporation existing at the
time it becomes a Subsidiary or at the time it is merged into or
consolidated with or purchased by the Company or a Subsidiary;
(b) Liens existing at the time of acquisition of the property
affected thereby or incurred to secure payment of all or part of the
purchase price of such property or to secure Debt incurred prior to, at
the time of or within 180 days after the acquisition of such property
for the purpose of financing all or part of the purchase price thereof
(provided such liens are limited to such property and improvements
thereon);
(c) Liens placed within 180 days of completion of construction
of new plants built on property which, in the opinion of the Board of
Directors, was, prior to such construction, substantially unimproved
for the use intended by the Company, to secure all
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or part of the cost of construction of such plants, or to secure Debt
incurred to provide funds for any such purpose;
(d) Liens which secure indebtedness owing by a Restricted
Subsidiary to the Company or another Restricted Subsidiary;
(e) Liens existing on the date of this Indenture;
(f) Liens arising by reason of mortgages on property owned or
leased by the Company or a Restricted Subsidiary in favor of the United
States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country or any
political subdivision thereof, or in favor of holders of securities
issued by any such entity, pursuant to any contract or statute
(including, without limitation, mortgages to secure Debt of the
pollution control or industrial revenue bond type) or to secure any
indebtedness incurred or guaranteed for the purpose of financing all or
any part of the purchase price or the cost of construction of the
property subject to such mortgages;
(g) Mechanics', materialmen's, carriers', workmen's, vendors'
or other like liens, arising in the ordinary course of business in
respect of obligations which are not past due or which are being
contested in good faith;
(h) Liens arising by reason of any deposit with, or the giving
of any form of security to (i) any surety company or clerk of any
court, or in escrow, as collateral in connection with, or in lieu of,
any bond or appeal from any judgment or decree against the Company or a
Restricted Subsidiary, or in connection with other proceedings or
actions at law or in equity by or against the Company or a Restricted
Subsidiary, or (ii) any government or governmental department, agency
or instrumentality, which deposit or security is required or permitted
to qualify the Company or a Restricted Subsidiary to conduct business
(or perform any contract with such entities), to maintain
self-insurance, or to obtain the benefit of, or comply with, any law
pertaining to workers' compensation, unemployment insurance, old age
pensions, social security, or similar matters;
(i) Liens existing on property acquired by the Company or a
Restricted Subsidiary through the exercise of rights arising out of
defaults on receivables acquired in the ordinary course of business;
(j) Liens for judgments or awards, so long as the finality of
any such judgment or award is being contested in good faith and
execution thereon is stayed;
(k) Liens for taxes or assessments or governmental charges or
levies not yet past due or delinquent or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established; and any other liens of a nature substantially similar to
those described in this clause (k) which do not, in the opinion of the
Board of Directors of the Company,
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materially impair the use of such property in the operation of the
business of the Company and its Restricted Subsidiaries taken as a
whole or the value of such property for the purposes of such business;
or
(l) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien
referred to in the foregoing clauses (a) to (k) inclusive or of any
Debt secured thereby, provided that the principal amount of Debt
secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement, and that
such extended, renewed or replacement lien shall be limited to all or
part of the same property which secured the lien extended, renewed or
replaced (plus improvements on such property).
The covenant contained in this Section will be subject to the provision
for exempted indebtedness in Section 4.07.
SECTION 4.06. Limitation on Sale and Lease-Back. Subject to the
provisions of Article Twelve (to the extent they are applicable to the
Securities of any series), the Company will not, nor will it permit any
Restricted Subsidiary to, enter into any arrangement with any person providing
for the leasing by the Company or any Restricted Subsidiary of any Principal
Property (whether such Principal Property is now owned or hereafter acquired),
except for temporary leases for a term, including any renewal, of not more than
three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries, which Principal Property has been
or is to be sold or transferred by the Company or such Restricted Subsidiary to
such person (hereinafter, a "Sale and Lease-Back Transaction"), unless either
(i) the Company or such Restricted Subsidiary would be entitled, in accordance
with the provisions of Section 4.05 (other than provisions with respect to
exempted indebtedness), to incur Debt secured by a lien on such property without
equally and ratably securing the Securities, or (ii) the Company within 180 days
after the effective date of the Sale and Lease-Back Transaction applies an
amount equal to the Value of such transaction to the voluntary retirement of its
Funded Debt. For the purposes of this Article, "Value" shall mean an amount
equal to the greater of the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction, or the fair value in
the opinion of the Board of Directors of the leased property at the time of
entering into such Sale and Lease-Back Transaction. For the purposes of this
Article, "Funded Debt" shall mean indebtedness (including Securities) maturing
by the terms thereof more than one year after the original creation thereof.
The covenant contained in this Section will be subject to the provision
for exempted indebtedness in Section 4.07.
SECTION 4.07. Exempted Indebtedness. Notwithstanding the provisions
contained in Sections 4.05 and 4.06, the Company and its Restricted Subsidiaries
may issue or guarantee Debt which would otherwise be subject to the limitation
of Section 4.05, without securing the Securities, or may enter into Sale and
Lease-Back Transactions which would otherwise be subject to the limitation of
Section 4.06, without retiring Funded Debt, or enter into a combination of such
transactions, if the sum of (i) the principal amount of all such debt incurred
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after the date hereof, and which would otherwise be or have been prohibited by
the limitations of Section 4.05 or 4.06 and (ii) the aggregate Value of all such
Sale and Lease-Back Transactions after the date hereof does not at any such time
exceed 10% of the Consolidated Net Tangible Assets of the Company and its
Consolidated Subsidiaries as shown in the audited consolidated balance sheet
contained in the latest annual report to the stockholders of the Company. For
this purpose, "Consolidated Net Tangible Assets" means the excess over current
liabilities of total assets after deducting goodwill, trade names, trademarks,
patents, unamortized debt discount, unamortized expense incurred in the issuance
of debt, and other like intangibles, as shown on such consolidated balance sheet
prepared in accordance with generally accepted accounting principles.
SECTION 4.08. Statement by Officers as to Default. The Company will
deliver to the Trustee, on or before a date not more than four months after the
end of each of its fiscal years ending after the date hereof during which any
Securities are outstanding, an Officers' Certificate stating that neither of the
signers thereof has any knowledge after due investigation of the existence of
any default by the Company in the performance of any covenant or agreement
contained in Sections 4.05, 4.06, 11.01 and 11.02 or stating that they have
knowledge of the existence of such a default of which the signers have knowledge
and the nature thereof.
SECTION 4.09. Further Instruments and Acts. The Company will, upon
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture, including Sections 4.05 and 4.06.
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee with respect to each series of Securities:
(a) not more than 15 days after each Record Date for the
payment of interest, if any, with respect to such series of Securities,
or, if interest shall not be paid with respect to such series at least
as frequently as semi-annually, not later than July 15 and January 15
of each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of such series as of
such Record Date or the immediately preceding June 30 or December 31,
whichever is applicable; and
(b) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the date such list is furnished;
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except that, so long as the Trustee is the Security Registrar with respect to
such series of Securities, no such list need be furnished under this Section
5.01.
SECTION 5.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders (1)
contained in the most recent list furnished to it as provided in Section 5.01
and (2) received by it in the capacity of paying agent or Security Registrar (if
so acting) hereunder.
The Trustee may destroy any list furnished to it with respect to
Securities of any series as provided in Section 5.01 upon receipt of a new list
with respect to such series so furnished.
(b) Holders of any series of Securities may communicate
pursuant to TIA Section 312(b) with other Holders of such series with
respect to their rights under this Indenture or under the Securities of
such series. In complying with such section of the TIA, the Company,
the Trustee, any Security Registrar, and any paying agent shall have
the protection of TIA Section 312(c).
SECTION 5.03. Reports by Company. The Company covenants and agrees to
file with the Trustee, within 15 days after the Company is required to file the
same with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules or regulations prescribe) which the
Company may be required to file with the SEC pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934, as amended. The Company shall also
comply with the other provisions of TIA Section 314(a).
SECTION 5.04. Reports by Trustee. (a) On or before August 15, 1987 and
on or before August 15 in every year thereafter, so long as any Securities of
any series are outstanding hereunder, the Trustee shall transmit to the Holders
of Securities of each such series and to the Company a brief report dated as of
the preceding May 15 which complies with TIA Section 313(a). The Trustee shall
also comply with TIA Section 313(b)(2). Reports to Holders pursuant to this
Section 5.04 shall be transmitted in the manner and to the extent provided in
TIA Section 313(c).
(b) A copy of each such report shall, at the time of such transmission
to such Holders, be filed by the Trustee with each stock exchange upon which the
Securities of such series are listed and also with the SEC. The Company agrees
to notify the Trustee when and as the Securities of any series become listed on
any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
SECTION 6.01. Events of Default. In case one or more of the following
Events of Default (unless it is either inapplicable to a particular series or it
is specifically deleted from or modified
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in the instrument establishing such series and the form of Security for such
series) shall have occurred and be continuing with respect to any series of
Securities, that is to say:
(a) default in the payment of any instalment of interest upon
any Security of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium,
if any, on) the Securities of such series as and when the same shall
become due and payable either at Stated Maturity, upon redemption (for
any Sinking Fund payment or otherwise), by declaration or otherwise; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Securities of such series, or in this Indenture
contained and relating to such series, for a period of 60 days after
the date on which written notice specifying such failure and requiring
the Company to remedy the same shall have 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 twenty-five per cent in aggregate
principal amount at Stated Maturity of the Securities of such series at
the time outstanding; or
(d) the Company shall pursuant to or within the meaning of
any Bankruptcy Law:
(1) commence a voluntary case,
(2) consent to the entry of an order for relief
against it in an involuntary case,
(3) consent to the appointment of a Custodian of the
Company or for all or substantially all of its property, or
(4) make a general assignment for the benefit of its
creditors; or
(e) a court of competent jurisdiction shall enter an order or
decree under any Bankruptcy Law that:
(1) is for relief against the Company in an
involuntary case,
(2) appoints a Custodian of the Company or for all or
substantially all of its property, or
(3) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days;
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then and in each and every such case, so long as such Event of Default with
respect to such series shall not have been remedied or waived, unless the
principal of all Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than twenty-five per cent
in aggregate principal amount at Stated Maturity of the Securities of such
series then outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Holders), may declare the principal (and, in the
case of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) of all the Securities of such
series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if at
any time after the principal of the Securities of such series (or, in the case
of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
instalments of interest, if any, upon all the Securities of such series and the
principal of (and premium, if any, on) any and all Securities of such series
which shall have become due otherwise than by such acceleration (with interest
upon such principal (and premium, if any) and, to the extent that payment of
such interest is enforceable under applicable law, upon overdue instalments of
interest, at the rate borne by the Securities of such series (or, in the case of
Original Issue Discount Securities, at the yield to Stated Maturity) to the date
of such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith, and any and all
defaults under this Indenture, other than the nonpayment of the principal of
Securities of such series which shall have become due by such acceleration,
shall have been remedied - then and in every such case the Holders of a majority
in aggregate principal amount at Stated Maturity of the Securities of such
series then outstanding, by written notice to the Company and to the Trustee,
may waive all defaults and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
In case the Trustee or any Holders shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holders, then and in
every such case the Company, the Trustee and such Holders shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no
such proceedings had been taken.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. The Company
covenants that (1) in case default shall be made in the payment of any
instalment of interest on any Securities of any series, as and when the same
shall become due and payable, and such default shall have continued for a period
of 30 days, or (2) in case default shall be made in the payment of the principal
of (or premium, if any, on) any Securities of any series when the same shall
have become due and payable, whether at the Stated Maturity of the Securities of
such series or upon redemption (for any Sinking Fund payment or otherwise) or
upon declaration or otherwise - then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the Holders of the Securities of
such series, the whole amount that then shall have become due and payable on all
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such Securities for principal (and premium, if any) or interest, or both, as the
case may be, with interest upon the overdue principal (and premium, if any) and
(to the extent that payment of such interest is enforceable under applicable
law) upon overdue instalments of interest at the rate borne by the Securities of
such series (or, in the case of Original Issue Discount Securities, at the yield
to Stated Maturity); and, in addition thereto, such further amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities of such series and collect in the manner provided by law out of the
property of the Company or other obligor upon the Securities of such series
wherever situated the moneys adjudged or decreed to be payable.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, insolvency, reorganization or other similar judicial proceedings,
relative to the Company, its creditors, or its property, 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 pursuant to the
provisions of this Section 6.02) shall, if permitted by law, be entitled and
empowered to file and prove a claim or claims for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Securities
of such series to which the Trustee or the Holders of the Securities of such
series shall be entitled, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of such
Holders hereunder or on the Securities of such series allowed in such judicial
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of any amount payable to the Trustee for compensation and expenses, including
counsel fees; and any trustee in bankruptcy or receiver is hereby authorized by
each of such Holders to make such payments to the Trustee, and, in the event
that the Trustee shall consent to the making of such payments directly to such
Holders, to pay to the Trustee any amount due to it for compensation and
expenses, including counsel fees, incurred by it to the date of such payment.
Nothing herein contained shall be deemed to authorize or empower the Trustee,
except in accordance with action taken under Article Nine, to consent to or
accept or adopt, on behalf of any Holder, any plan of reorganization or
readjustment of the Company affecting the Securities of any series or the rights
of any Holder thereof, or to authorize or empower the Trustee to vote in respect
of the claim of any such Holder in any such proceedings.
All rights of action and of asserting claims under this Indenture, or
under any Securities of any series, may be enforced by the Trustee without the
possession of any such Securities, or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name and as trustee of an
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express trust, and any recovery of judgment (except for any amounts payable to
the Trustee pursuant to Section 7.06) shall be for the ratable benefit of the
Holders in respect of which the action was taken.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee, pursuant to Section 6.02 on account of a default
relating to a particular series of Securities, shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the several Securities of such series and coupons
appertaining thereto, if any, and the notation thereon of the payment, if only
partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
and reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all sums due the Trustee pursuant to Section 7.06
hereof;
SECOND: In case the principal of the Securities of such series
shall not have become due, to the payment of interest on the Securities
of such series, in the order of the maturity of the instalments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue instalments of interest at
the rate borne by the Securities of such series (or, in the case of
Original Issue Discount Securities, at the yield to Stated Maturity),
such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of such series
shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Securities of such
series for principal (and premium, if any) and interest, with interest
on the overdue principal (and premium, if any) and (to the extent that
such interest has been collected by the Trustee) upon overdue
instalments of interest at the rate borne by the Securities of such
series (or, in the case of Original Issue Discount Securities, at the
yield to Stated Maturity); and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal (and
premium, if any) and interest, without preference or priority of
principal (and premium, if any) over interest, or of interest over
principal (and premium, if any) or of any instalment of interest over
any other instalment of interest, or of any Securities of such series
over any other Securities of such series, ratably to the aggregate of
such principal (and premium, if any) and accrued and unpaid interest;
and
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FOURTH: The remainder, if any, shall be paid to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Security
of any series shall have any right by virtue or by availing of any provision of
this Indenture to institute any action or proceedings at law or in equity upon
or under or with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless such Holder previously
shall have given to the Trustee written notice of an Event of Default with
respect to Securities of that series and unless the Holders of not less than
twenty-five per cent in aggregate principal amount at Stated Maturity of the
then outstanding Securities of such series shall have made written request upon
the Trustee to institute such action or proceedings in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the cost, expenses and liabilities to be incurred therein or
thereby, and the Trustee, for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 6.06; it being understood and
intended, and being expressly covenanted by the taker and Holder of any Security
of any series with every other such taker and Holder and the Trustee, that no
one or more Holders of such Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the Holders of any other such Securities or
to obtain or seek to obtain priority over or preference to any other such
Holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of
such Securities. For the protection and enforcement of the provisions of this
Section 6.04, each and every Holder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, any
right of any Holder to receive payment of the principal of (and premium, if any)
and interest on any Security on or after the respective due dates expressed in
such Security (including any date fixed for redemption pursuant hereto) or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default. All powers and remedies given by this Article
Six to the Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.
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SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Securities of Any Series to Direct Trustee and to Waive Default. The Holders of
a majority in aggregate principal amount at Stated Maturity of the Securities of
any series at the time outstanding shall have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee with respect
to Securities of such series; provided, however, that such direction shall not
be otherwise than in accordance with law and the provisions of this Indenture,
and that subject to the provisions of Section 7.01 hereof, the Trustee shall
have the right to decline to follow any such direction if the Trustee being
advised by counsel shall determine that the action so directed may not lawfully
be taken, or if the Trustee shall by a responsible officer or officers determine
that the action so directed would involve it in personal liability or would be
unjustly prejudicial to Holders of Securities of such series not taking part in
such direction; and provided further, that nothing in this Indenture contained
shall impair the right of the Trustee in its discretion to take any action
deemed proper by the Trustee and which is not inconsistent with such direction
by such Holders. Prior to the declaration of the maturity of the Securities of
any series as provided in Section 6.01, the Holders of a majority in aggregate
principal amount at Stated Maturity of the Securities of such series at the time
outstanding may on behalf of the Holders of all of the Securities of such series
waive any past default hereunder and its consequences, except a default in the
payment of the principal of (and premium, if any) or interest on any of the
Securities of such series. In case of any such waiver, the Company, the Trustee
and the Holders of the Securities of such series shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, But May
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a default, give to the Holders of Securities of any
series to which such default relates, in the manner and to the extent provided
in TIA Section 313(c), notice of all defaults known to the Trustee with respect
to such Securities, unless such defaults shall have been cured or waived before
the giving of such notice (the term "default" or "defaults" for the purposes of
this Section 6.07 being hereby defined to be any event or events, as the case
may be, specified in clauses (a), (b), (c), (d) and (e) of Section 6.01, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in clause (c) of Section 6.01); provided
that, except in the case of default in the payment of the principal of (or
premium, if any) or interest on any of the Securities of any series or in the
making of any Sinking Fund payment, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors and/or responsible officers, of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders thereof.
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee. All parties to this Indenture
agree, and each Holder by his acceptance of any Security shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any
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party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.08 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder or group of
Holders holding in the aggregate more than ten per cent in principal amount at
Stated Maturity 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
(or premium, if any) or interest on any Security, on or after the respective due
dates expressed in such Security (including any date fixed for redemption).
SECTION 6.09. Waiver of Stay or Extension Laws. The Company covenants
and agrees (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities. The Trustee, prior
to the occurrence of an Event of Default with respect to a particular series of
Securities and after the curing or waiving of all Events of Default which may
have occurred with respect to such series, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default with respect to a particular series of Securities has occurred
(which has not been cured or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture relating to such series, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
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:
(a) prior to the occurrence of an Event of Default with
respect to a particular series of Securities and after the curing or
waiving of all Events of Default which may have occurred with respect
to such series:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set
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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 the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for an 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; and
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith relating to
Securities of any series in accordance with the direction of the
Holders of not less than a majority in principal amount at Stated
Maturity of the Securities of such series at the time outstanding
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, with respect to the Securities of such
series under this Indenture.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate security or indemnity against such risk or
liability is not reasonably assured to it.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided
in Section 7.01:
(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 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, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Direction
(unless other evidence in respect thereof is herein specifically
prescribed); and any resolution of the Board of Directors of the
Company shall be evidenced to the Trustee by a Certified Board
Resolution;
(c) the Trustee may consult with counsel and the advice of
such counsel or any opinion of counsel shall be full and complete
authorization and protection in respect
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of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with such advice or opinion of counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default which may have occurred, 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, approval or other
paper or document, unless requested in writing to do so by the Holders
of a majority in aggregate principal amount at Stated Maturity of
Securities of any series then outstanding; provided, however, that if
the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is not, in the opinion of the Trustee, reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such costs, expenses or liabilities as a condition to so proceeding;
the reasonable expense of every such investigation shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon
demand; 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 7.03. Trustee Not Liable for Recitals in Indenture or in
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities of any series. The Trustee represents that
it is duly authorized to execute and deliver this Indenture and perform its
obligations hereunder. The Trustee shall not be accountable for the use or
application by the Company of any of the Securities of any series or of the
proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Security Registrar May Own
Securities. The Trustee or any paying agent or Security Registrar with respect
to any series of Securities, in its individual or any other capacity, may become
the owner or pledgee of Securities of such series
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with the same rights it would have if it were not Trustee, paying agent or
Security Registrar with respect to such Securities.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. Subject
to the provisions of Section 12.04 hereof, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but 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. So long as no Event of Default with respect to
Securities of any series shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon a Company
Direction.
SECTION 7.06. Compensation and Reimbursement. The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
(which shall not be limited by any provisions of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents, attorneys and counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. If any property other than cash shall at any time be
subject to a lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by
the supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax liens or other prior liens or encumbrances thereon. The Company
also covenants to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on the
part of the Trustee, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Company under this Section 7.06 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of the Indenture. Such additional indebtedness shall be secured by
a lien, prior to that of the Securities of any series with respect to which the
indebtedness arose, upon all property and funds held or collected by the
Trustee, as such, relating to such series except funds held in Trust for the
payment of principal of (and premium, if any) or interest on Securities of such
series.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof is herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such Certificate, in
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the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. Disqualification; Conflicting Interests. The Trustee
shall be subject to TIA Section 310(b), including the optional provision
permitted by the second sentence of TIA Section 310(b)(9); and for the purposes
of this Indenture, with respect to Securities of any series, the provisions of
TIA Section 310(b) relating to "other securities" shall be deemed to include
Securities of each other series and such provisions relating to any "other
indenture or indentures" shall be deemed to include the provisions of this
Indenture relating to Securities of each other series.
SECTION 7.09. Requirements for Eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or of any State, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 7.09, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation and Removal of Trustee. (a) The Trustee, or
any trustee or trustees hereafter appointed, may at any time resign as Trustee
with respect to any series of Securities by giving written notice of resignation
to the Company and by giving notice thereof to the Holders of the Securities of
such series in the manner and to the extent provided in TIA Section 313(c). Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor trustee
with respect to the Securities of such series shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Holder who has
been a bona fide Holder of a Security or Securities of the affected series for
at least six months may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee with respect to the Securities of such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee with respect to the Securities
of such series.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of clause
(i) TIA section 310(b) after written request therefor by the Company or
by any Holder who has
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been a bona fide Holder of a Security or Securities of the affected
series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to all
Securities of any affected series and appoint a successor trustee thereof by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
6.08, any Holder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee thereof. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee with respect to the
Securities of such series.
(c) The Holders of a majority in aggregate principal amount at Stated
Maturity of the Securities of any series at the time outstanding may at any time
remove the Trustee with respect to the Securities of such series and appoint a
successor trustee therefor by the delivery to the Trustee so removed, to the
successor trustee and to the Company of the evidence provided for in Section
8.01 of the action in that regard taken by such Holders.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee for the Securities of any series pursuant to any of the
provisions of this Section 7.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
SECTION 7.11. Acceptance by Successor to Trustee. (a) No successor
trustee with respect to any series of Securities shall accept appointment as
provided in this Section 7.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09.
(b) 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 its predecessor Trustee
as provided in Section 7.10 an instrument accepting such appointment, and
thereupon the resignation or removal of the predecessor 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 predecessor Trustee with
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respect to all such Securities; but, on the request of the Company or the
successor trustee, such predecessor Trustee, with like effect as if originally
named as Trustee herein, shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor trustee all the rights, powers and
trusts of the predecessor Trustee and shall duly assign, transfer and deliver to
such successor trustee all property and money held by such predecessor Trustee
hereunder subject, nevertheless, to its lien, if any, provided for in Section
7.06.
(c) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor trustee with respect to the Securities of
the affected 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 predecessor Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee relates,
(2) if the predecessor 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 predecessor
Trustee with respect to the Securities of that or those series as to which the
predecessor Trustee is not resigning shall continue to be vested in the
predecessor 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 predecessor 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 predecessor 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 predecessor Trustee shall
duly assign, transfer and deliver to such successor trustee all property and
money held by such predecessor Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor trustee
relates.
(d) Upon acceptance of appointment by a successor trustee with respect
to any series of Securities as provided in this Section 7.11, the Company shall
give notice of the succession of such trustee and the address of its Corporate
Trust Office to all Holders of Securities of any such series in the manner and
to the extent provided in TIA Section 313(c). If the Company fails to provide
such notice within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be provided at the
expense of the Company.
SECTION 7.12. Successor to Trustee by Merger, 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be
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qualified under the provisions of Section 7.08, and eligible under the
provisions of Section 7.09, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of the particular series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee,
and deliver such Securities so authenticated; and in case at that time any of
the Securities of such series shall not have been authenticated, any successor
to the Trustee with respect to the Securities of such series may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor trustee; and in all such cases such certificates shall have the
full force which it is anywhere in such Securities or in this Indenture provided
that the certificate of authentication of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities of the particular series in
the name of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 7.13. Preferential Collection of Claims Against Company. The
Trustee shall be subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
SECTION 7.14. Appointment of Additional and Separate Trustees. Whenever
the Trustee shall deem it necessary or prudent in order to conform to any law of
any jurisdiction, or the Trustee shall be advised by counsel, satisfactory to
it, that it is necessary or prudent in the interest of the Holders of Securities
of any series or in the event that the Trustee shall have been requested to do
so by the Holders of a majority in principal amount at Stated Maturity of the
Securities of any series at the time outstanding, the Trustee and the Company
shall execute and deliver an indenture supplemental hereto and all other
instruments and agreements necessary or proper to constitute another bank or
trust company, or one or more persons appointed by the Company, either to act as
additional trustee or trustees hereunder, jointly with the Trustee, or to act as
separate trustee or trustees hereunder, in any such case with such powers with
respect to the affected series of Securities as may be provided in such
indenture supplemental hereto, and to vest in such bank, trust company or person
as such additional trustee or separate trustee, as the case may be, any
property, title, right or power of the Trustee with respect to the affected
series of Securities deemed necessary or advisable by the Trustee, subject to
the provisions of this Section 7.14 below set forth. In the event the Company
shall not have joined in the execution of such indenture supplemental hereto
within ten days after the receipt of a written request from the Trustee so to
do, or in case an Event of Default with respect to the particular series of
Securities shall occur and be continuing, the Trustee may act under the
foregoing provisions of this Section 7.14 without the concurrence of the
Company; and the Company hereby appoints the Trustee its agent and
attorney-in-fact to act for it under the foregoing provisions of this Section
7.14 in either of such contingencies. The Trustee may execute, deliver and
perform any deed, conveyance, assignment or other instrument in writing as may
be required by any additional trustee or separate trustee for more fully and
certainly vesting in and confirming to it any property, title, right or powers
with respect to the affected series of Securities conveyed or
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conferred to or upon such additional trustee or separate trustee, and the
Company shall, upon the Trustee's request, join therein and execute, acknowledge
and deliver the same; and the Company hereby makes, constitutes and appoints the
Trustee its agent and attorney-in-fact for it and in its name, place and stead
to execute, acknowledge and deliver any such deed, conveyance, assignment or
other instrument with respect to the affected series of Securities in the event
that the Company shall not itself execute and deliver the same within ten days
after receipt by it of such request so to do. Any supplemental indenture
executed pursuant to the provisions of this Section 7.14 shall conform to the
provisions of the Trust Indenture Act of 1939 as in effect as of the date of
such supplemental indenture.
Every additional trustee and separate trustee hereunder shall, to the
extent permitted by law, be appointed and act, and the Trustee shall act with
respect to a particular series of Securities, subject to the following
provisions and conditions:
(1) the Securities of such series shall be authenticated by
the Trustee and all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody, investment and
payment of moneys, shall be exercised solely by the Trustee;
(2) all other rights, powers, duties and obligations with
respect to the Securities of such series conferred or imposed upon the
Trustee and such additional trustee or separate trustee or any of them
shall be conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees and separate trustee or
trustees jointly, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations with
respect to the Securities of such series shall be exercised and
performed by such additional trustee or trustees or separate trustee or
trustees;
(3) no power hereby given to, or with respect to which it is
hereby provided may be exercised by, any such additional trustee or
separate trustee with respect to a particular series of Securities
shall be exercised hereunder by such additional trustee or separate
trustee except with the consent of the Trustee; and
(4) no trustee with respect to a particular series of
Securities hereunder shall be personally liable by reason of any act or
omission of any other trustee with respect to such series of Securities
hereunder.
If at any time the Trustee shall deem it no longer necessary or prudent in order
to conform to any such law or shall be advised by counsel that it is no longer
so necessary or prudent in the interest of the Holders of Securities of any
series or in the event that the Trustee shall have been requested to do so in
writing by the Holders of a majority in principal amount at Stated Maturity of
the Securities of such series at the time outstanding, the Trustee and the
Company shall execute and deliver an indenture supplemental hereto and all other
instruments and agreements necessary or proper to remove any additional trustee
or separate trustee with respect to such series. In the event that the Company
shall not have joined in the execution of such indenture
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supplemental hereto, instruments and agreements, the Trustee may act on behalf
of the Company to the same extent provided above.
Any additional trustee or separate trustee with respect to any series
of Securities may at any time by an instrument in writing constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent
which may be authorized by law, to do all acts and things and exercise all
discretions which it is authorized or permitted to do or exercise with respect
to such series, for and in its behalf and in its name. In case any such
additional trustee or separate trustee shall die, become incapable of acting,
resign or be removed, all the assets, property, rights, powers, trusts, duties
and obligations of such additional trustee or separate trustee with respect to
such series, as the case may be, so far as permitted by law, shall vest in and
be exercised by the Trustee, without the appointment of a new successor to such
additional trustee or separate trustee unless and until a successor with respect
to such series is appointed in the manner hereinbefore provided.
Any request, approval or consent in writing by the Trustee to any
additional trustee or separate trustee of any series of Securities shall be
sufficient warrant to such additional trustee or separate trustee, as the case
may be, to take such action with respect to the particular series of Securities
as may be so requested, approved or consented to.
Each additional trustee and separate trustee appointed pursuant to this
Section 7.14 shall be subject to, and shall have the benefit of, Articles Six,
Seven (other than Section 7.09) and Eight hereof and the following Sections of
this Indenture shall be specifically applicable to each additional trustee and
separate trustee: 5.04(a) (except to the extent that reference therein is made
to its eligibility under Section 7.09) and (b), 6.02, 6.07, 7.01, 7.08 and 7.13;
provided, however, that no resignation of an additional or separate trustee
pursuant to Section 7.10 hereof shall be conditioned in any sense whatever upon
the appointment of a successor to such trustee.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 8.01. Evidence of Action by Holders. Whenever in this Indenture
it is provided that the Holders of a specified percentage in aggregate principal
amount at Stated Maturity of the Securities of any series may take any action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Holders in person or by agent or
proxy appointed in writing, or (b) by the record of such Holders voting in favor
thereof at any meeting of such Holders duly called and held in accordance with
the provisions of Article Nine, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of such Holders.
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SECTION 8.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The ownership of a registered Security shall be proved by the Security
Register relating to the series or by a certificate of the Security Registrar.
The ownership of an unregistered Security or any coupon attached to
such Security at its issuance shall be proved by the production of such Security
or coupon, or, with respect to unregistered Securities only, by a certificate
executed by any trust company, bank, broker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such person had on deposit with such
depositary, or exhibited to it, the Securities therein described; or such facts
may be proved by the certificate or affidavit of the person holding such
Security, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
unregistered Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Security is produced, (2)
such Security is produced by some other person or (3) such Security is no longer
outstanding. The amount of unregistered Securities held by any person may also
be proved in any other manner which the Trustee deems sufficient.
The Trustee may require such additional proof of any matter referred to
in this Section 8.02 as it shall deem necessary.
The record of any meeting of Holders shall be proved in the manner
provided in Section 9.06.
SECTION 8.03. Who May Be Deemed Owner of Securities. Prior to due
presentment for registration of transfer of a registered Security of any series,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the person in whose name such Security shall be registered, or, in the
case of unregistered Securities, the bearer thereof or the owner thereof
determined pursuant to Section 8.02, as the absolute owner of such Security
(whether or not such Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon made by anyone) for the purpose of
receiving payment of or on account of the principal of (and premium, if any) and
interest on such Security and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 8.04. Securities Owned by Company or Controlled or Controlling
Companies Disregarded for Certain Purposes. In determining whether the Holders
of the requisite aggregate principal amount at Stated Maturity of Securities of
any series have concurred in any
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direction, consent or waiver under this Indenture, Securities of such series
which are owned by the Company or any other obligor on the Securities of such
series or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on
the Securities of such series shall be disregarded and deemed not to be
outstanding for the purposes of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver, only Securities of such series which the
Trustee knows are so owned shall be so disregarded. Securities of such series so
owned which have been pledged in good faith may be regarded as outstanding for
the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Securities and that
the pledgee is not the Company or any other obligor on the Securities of such
series or a person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection for the Trustee.
SECTION 8.05. Instruments Executed by Holders Bind Future Holders. At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount at Stated Maturity of the Securities of any series
specified in this Indenture in connection with such action, any Holder of a
Security of such series which is shown by the evidence to be included in the
Securities of the particular series the Holders of which have consented to such
action may, by filing written notice with the Trustee at its Corporate Trust
Office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security, and of any Security issued
upon registration of transfer thereof or in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Security or such other Security. Any action taken by the Holders of the
percentage in aggregate principal amount at Stated Maturity of the Securities of
any series specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the Holders of all such
Securities.
ARTICLE NINE
HOLDERS' MEETINGS AND CONSENTS
SECTION 9.01. Purposes for Which Meeting May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to the provisions of this Article Nine for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of Securities of such series pursuant
to any of the provisions of Article Six;
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(2) to remove the Trustee and appoint a successor trustee with
respect to Securities of such series pursuant to the provisions of
Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount at
Stated Maturity of Securities of such series under any other provision
of this Indenture or under applicable law.
SECTION 9.02. Manner of Calling Meetings. The Trustee may at any time
call a meeting of Holders of Securities of any series to take any action
specified in Section 9.01, to be held at such time and at such place in Chicago,
Illinois, or at such other location as the Trustee shall determine. With respect
to registered Securities of any series, notice of every such meeting, setting
forth the time and the place of such meeting, and in general terms the action
proposed to be taken at such meeting, shall be mailed to such Holders at their
addresses as they shall appear on the Security Register with respect to such
Securities. With respect to unregistered Securities of any series, notice of
every such meeting shall be published in an authorized newspaper on two separate
days. Such notice shall be provided not less than 20 nor more than 120 days
prior to the date fixed for the meeting.
SECTION 9.03. Call of Meetings by Company or Holders. In case at any
time the Company, pursuant to a Certified Board Resolution, or the Holders of at
least ten percent in aggregate principal amount at Stated Maturity of Securities
of any series then outstanding, shall have requested the Trustee to call a
meeting of Holders of Securities of such series to take any action authorized in
Section 9.01 by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have provided the
notice of such meeting within 20 days after receipt of such request, then the
Company or the Holders of such Securities in the amount above specified may
determine the time and the place in Chicago, Illinois, for such meeting and may
call such meeting by providing notice thereof as provided in Section 9.02.
SECTION 9.04. Who May Attend and Vote at Meetings. To be entitled to
vote at any meeting of Holders of a particular series of Securities, a person
shall (a) be a Holder of one or more Securities of such series or (b) be a
person appointed by an instrument in writing as proxy by a Holder of one or more
Securities of such series. The only persons who shall be entitled to be present
or to speak at any meeting of Holders of a particular series of Securities shall
be the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 9.05. Regulations May Be Made by Trustee. Notwithstanding any
other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities of
a particular series, in regard to proof of the holding of Securities of such
series and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
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certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem necessary. Except as
otherwise permitted or required by any such regulations, the holding of
Securities of such series shall be proved in the manner specified in Section
8.02 and the appointment of any proxy shall be proved in the manner specified in
Section 8.02.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 9.03, in which case the Company or
such Holders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting may be elected by vote of the Holders of a majority in principal
amount at Stated Maturity of Securities of the particular series represented at
the meeting and entitled to vote.
Subject to the provisions of Section 8.04, at any meeting each Holder
of Securities of the particular series or proxy entitled to vote shall have one
vote for each $1,000 principal amount at Stated Maturity of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security of such series challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Securities of such series held by him or instruments in writing as
aforesaid duly designating him as the person to vote on behalf of other Holders
of Securities of the particular series. At any meeting of Holders duly called
pursuant to the provisions of Section 9.02 or Section 9.03 the presence of
persons holding or representing Securities of the particular series in an
aggregate principal amount at Stated Maturity sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum be present, the meeting may be adjourned from
time to time by the Holders of a majority in principal amount at Stated Maturity
of the Securities of such series represented at the meeting and entitled to
vote, and the meeting may be held as so adjourned without further notice.
SECTION 9.06. Manner of Voting at Meetings and Record to Be Kept. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders or proxies entitled to vote. The chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 9.02. The record shall be signed and verified by the
affidavits of the chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
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Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 9.07. Written Consent in Lieu of Meetings. The written
authorization or consent of the requisite percentage herein provided of Holders
of Securities of any series entitled to vote at any meeting of Holders of
Securities of a particular series, evidenced as provided in Article Eight and
filed with the Trustee, shall be effective in lieu of a meeting of such Holders
with respect to any matter provided for in this Article Nine.
SECTION 9.08. No Delay of Rights by Meeting. Nothing in this Article
Nine contained shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Holders of Securities of any series, or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Holders of Securities of such series under any of the
provisions of this Indenture or of the Securities of such series.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. Purposes for Which Supplemental Indentures May Be
Entered into Without Consent of Holders. The Company, when authorized by a
resolution of its Board of Directors, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as then in
effect) for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Eleven;
(b) to appoint one or more additional or separate trustees to
act under this Indenture in the manner and to the extent contemplated
by Section 7.14;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of
the Holders of Securities of any or all series as its Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Securities of such series, and to make the occurrence,
or the occurrence and continuance, of a default of any such additional
covenants, restrictions, conditions or provisions a default or an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth with respect to
Securities of such series; provided, however, that in respect of any
such additional covenant, restriction, condition or provision with
respect to Securities of such series, such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may
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provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount at
Stated Maturity of the Securities of such series to waive such default;
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision;
(e) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other
provisions in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests of Holders of
Securities of any series;
(f) to modify, amend or supplement this indenture to comply
with the provisions of Sections 4.05 and 11.01;
(g) to provide for the issuance of unregistered Securities, or
for the exchangeability of registered Securities of any series with
unregistered Securities of a series issued hereunder, or vice versa,
and to make all appropriate changes for such purpose;
(h) to provide for the issuance under this Indenture of
Securities of a series having any form or terms contemplated by
Sections 2.01 and 2.02; and
(i) 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 7.14.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
10.01 may be executed by the Company and the Trustee without the consent of the
Holders of any Securities of any series at the time outstanding, notwithstanding
any of the provisions of Section 10.02.
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SECTION 10.02. Modification of Indenture with Consent of Holders of a
Majority in Principal Amount of Securities. With the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount at Stated Maturity of the Securities of any series at
the time outstanding, the Company, when authorized by a resolution of its Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto with respect to Securities of the
particular series (which shall conform to the provisions of the Trust Indenture
Act of 1939 as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture relating to such series of Securities or of
modifying in any manner the rights of the Holders of Securities of the
particular series; provided, however, that no such supplemental indenture shall
(i) extend the Stated Maturity of any Security, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of any interest
thereon, or reduce any premium payable upon the redemption thereof, or reduce
the amount of an Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of Stated Maturity thereof pursuant to
Section 6.01, or change the currency in which any Security is payable, without
the consent of the Holder of each Security so affected, or (ii) reduce the
aforesaid majority in aggregate principal amount of Securities of any series,
the consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of all Securities of each affected
series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any series not so affected.
Upon the request of the Company, accompanied by a Certified Board
Resolution authorizing the execution of any such supplemental indenture relating
to Securities of a particular series, and upon the filing with the Trustee of
evidence of the consent of Holders of Securities of the particular series as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the Holders of Securities of a particular
series to approve under this Section 10.02 the particular form of any proposed
supplemental indenture with respect to such series of Securities, but it shall
be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice thereof by first-class mail to the Holders of
registered Securities of each series affected thereby at their addresses as they
shall appear on the Security Register for such Securities, or, in the case of
unregistered Securities, shall give notice in the manner and to the extent
provided in TIA Section 313(c), setting forth in general terms the substance of
such supplemental indenture. Any
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failure of the Company to provide such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.03. Effect of Supplemental Indentures. Upon the execution
and delivery of any supplemental indenture with respect to any series of
Securities pursuant to the provisions of this Article Ten, this Indenture shall
be and be deemed to be modified and amended with respect to the affected series
of Securities in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Securities of the series affected shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
regard an Opinion of Counsel as conclusive evidence that any such supplemental
indenture with respect to any series of Securities complies with the provisions
of this Article Ten.
SECTION 10.04. Securities May Bear Notation of Changes by Supplemental
Indentures. Securities authenticated and delivered after the execution, pursuant
to the provisions of this Article Ten, of any supplemental indenture with
respect to any series of Securities may, and shall if required by the Trustee,
bear a notation in the form approved by the Trustee as to any matter provided
for in such supplemental indenture. New Securities of the affected series so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Company, to any modification of this Indenture contained in any such
supplemental indenture with respect to such series of Securities may be prepared
by the Company, authenticated by the Trustee and delivered in exchange for the
Securities of the particular series then outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
SECTION 11.01. Company May Consolidate, etc., on Certain Terms. Subject
to the provisions of Section 11.02, nothing contained in this Indenture or in
any of the Securities shall prevent any consolidation or merger of the Company
with or into any other corporation or corporations (whether or not affiliated
with the Company), or successive consolidations or mergers in which the Company
or its successor or successors shall be a party or parties, or shall prevent any
sale, conveyance or lease of the property of the Company substantially as an
entirety to any other corporation or entity (whether or not affiliated with the
Company) authorized to acquire and operate the same; provided, however, and the
Company hereby covenants and agrees, subject to the provisions of Article Twelve
(to the extent they are applicable to the Securities of any series), that upon
any such consolidation, merger, sale, conveyance or lease, other than a merger
in which the Company is the continuing corporation, the due and punctual payment
of the principal of and interest on all of the Securities, according to their
tenor, and the
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due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee, executed
and delivered to the Trustee by the corporation (if other than the Company)
formed by such consolidation, or into which the Company shall have been merged,
or by the corporation or entity which shall have acquired or leased such
property.
SECTION 11.02. Securities to Be Secured in Certain Events. Subject to
the provisions of Article Twelve (to the extent they are applicable to the
Securities of any series), if, upon any consolidation, merger, sale, conveyance
or lease referred to in Section 11.01, or upon any consolidation or merger of
any Restricted Subsidiary, or upon any sale, conveyance or lease of the property
of any Restricted Subsidiary substantially as an entirety to any other
corporation or entity, any Principal Property of the Company or of any
Restricted Subsidiary or any shares of stock or indebtedness of any Restricted
Subsidiary which is owned immediately after such consolidation, merger, sale,
conveyance or lease by the Company or a Restricted Subsidiary or a successor to
the Company pursuant to Sections 11.01 and 11.03 would thereupon become subject
to any mortgage, security interest, pledge, lien or encumbrance (other than a
mortgage, security interest, pledge, lien or encumbrance in favor of the
Company, a Restricted Subsidiary or any such successor), the Company, prior to
or concurrently with such consolidation, merger, sale, conveyance or lease, will
effectively provide that the Securities shall be secured (equally and ratably
with, if the Company shall determine, any other indebtedness of or guaranteed by
the Company or a Restricted Subsidiary ranking equally with the Securities) by a
direct lien on such Principal Property, shares of stock or indebtedness, prior
to all liens other than any theretofore existing thereon, so long as such
Principal Property, shares of stock or indebtedness shall be subject to such
mortgage, security interest, pledge, lien or encumbrance.
SECTION 11.03. Successor Corporation to Be Substituted. In case of any
such consolidation, merger, sale, conveyance or lease referred to in Section
11.01 and upon the assumption by the successor corporation or entity, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and
interest on all of the Securities and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Company,
such successor corporation or entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as a party. Such
successor corporation or entity thereupon may cause to be signed, and may issue
either in its own name or in the name of Illinois Tool Works Inc. 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 or entity 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 or entity
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof. In the
event of
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any such sale or conveyance, but not any such lease, the Company or any
successor corporation or entity which shall theretofore have become such in the
manner described in this Article Eleven shall be discharged from all obligations
and covenants under this Indenture and the Securities and may be dissolved and
liquidated.
In case of any such consolidation, merger, sale, conveyance or lease
referred to in Section 11.01, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
SECTION 11.04. Opinion of Counsel to Be Given Trustee. The Trustee,
subject to Sections 7.01 and 7.02, shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that any such
consolidation, merger, sale, conveyance or lease and any such assumption
complies with the provisions of this Article Eleven.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Satisfaction and Discharge of Indenture. If at any time
(a) the Company shall have delivered to the Trustee for cancellation all
Securities of any series theretofore authenticated and delivered (other than
Securities which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.07 or Securities for whose
payment money has theretofore been deposited in trust and thereafter repaid to
the Company as provided in Section 12.05), or (b) all Securities of any series
not theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year or
are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall
deposit with the Trustee as trust funds the entire amount sufficient to pay at
Stated Maturity or upon redemption all such Securities not theretofore delivered
to the Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due at Stated Maturity or on such redemption date, as
the case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect (except with respect to the right of Holders to
register the transfer of, or exchange, registered Securities, which right shall
survive) and the Trustee, on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel as required by Section 14.05 and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee
under Section 7.06 shall survive.
SECTION 12.02. Defeasance and Discharge of Securities or Certain
Obligations. If this Section 12.02 is specified, as contemplated by Section
2.01, to be applicable to Securities of any series, then notwithstanding Section
12.01:
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(a) The Company shall be deemed to have paid and discharged
the entire indebtedness on all the Outstanding Securities of that
series, the provisions of this Indenture as it relates to such
Outstanding Securities (except as to (i) the rights of Holders of
Securities to receive, from the trust funds described in subparagraph
(1) below, payment of the principal of (and premium, if any) and any
instalment of principal of (and premium, if any) or interest on such
Securities on the Stated Maturity of such principal or instalment of
principal or interest or any mandatory sinking fund payments or
analogous payments applicable to the Securities of that series on the
day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities, (ii) the Company's
obligations with respect to such Securities under Sections 2.05, 2.07,
4.02, 4.04, 5.01, 7.06, 7.10, 7.11, 12.02 and Article 3 of this
Indenture, so long as any principal of (and premium, if any) or
interest on such Securities remains unpaid and, thereafter, only the
Company's rights and obligations under Sections 4.04 and 7.06, and
(iii) the rights, powers, trusts, duties and immunities of the Trustee
with respect to such series) shall no longer be in effect, and the
Trustee, at the expense of the Company, shall, upon a Company
Direction, execute proper instruments acknowledging the same, provided
that the following conditions have been satisfied:
(1) With reference to this Section 12.02(a), the
Company has deposited or caused to be deposited with the
Trustee irrevocably (irrespective of whether the conditions in
subparagraphs (2), (3), (4) or (5) below have been satisfied),
but subject to the provisions of Section 12.02(c) and the last
paragraph of Section 6.03), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series,
(A) money in an amount, or (B) Government Obligations which,
through the payment of interest and principal in respect
thereof in accordance with their terms, without consideration
of any reinvestment thereof, will provide not later than the
opening of business on the due date of any payment referred to
in clause (i) or (ii) of this subparagraph (1) money in an
amount, or (C) a combination thereof, sufficient, after
payment of all taxes in respect thereof payable by the
Trustee, 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 (i) the principal of (and premium, if any) and each
instalment of principal (and premium, if any) and interest on
the Outstanding Securities of that series on the Stated
Maturity of such principal or instalment of principal or
interest or any date fixed for redemption of such Outstanding
Securities and (ii) any mandatory sinking fund payments or
analogous payments applicable to 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) the Company has paid or caused to be paid all
other sums payable in respect of such Securities, and such
payment and the deposit set forth in subparagraph (1) above
will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is
bound;
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(3) no Event of Default or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default with respect to the Securities of that series
shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 6.01(d) or
Section 6.01(e) or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under
Section 6.01(d) or Section 6.01(e) shall have occurred and be
continuing on the 91st day after such date;
(4) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Company has received
from, or there has been published by, the Internal Revenue
Service a ruling to the effect that Holders of the Securities
of that series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income
tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent in this Indenture provided for
relating to the defeasance and discharge of the entire
indebtedness on all Outstanding Securities of any such series
as contemplated by this Section 12.02(a) have been complied
with.
(b) The Company may omit to comply with any term, provision or
condition set forth in Sections 4.05, 4.06, 4.07 and Article Eleven,
and Section 6.01(c) with respect to Sections 4.05, 4.06, 4.07 and
Article Eleven shall be deemed not to be an Event of Default, in each
case with respect to the Securities of that series, provided that the
following conditions have been satisfied:
(1) with reference to this Section 12.02(b), the
Company has deposited or caused to be deposited with the
Trustee irrevocably (irrespective of whether the conditions in
subparagraphs (2), (3), (4), (5) and (6) below have been
satisfied, but subject to the provisions of Section 12.02(c)
and the last paragraph of Section 6.03), as trust funds in
trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities of
that series, (A) money in an amount, or (B) Government
Obligations through the payment of interest and principal in
respect thereof in accordance with their terms, without
consideration of any reinvestment thereof, will provide not
later than the opening of business on the due date of any
payment referred to in clause (i) or (ii) of this subparagraph
(1) money in an amount, or (C) a combination thereof,
sufficient, after payment of all taxes in respect thereof
payable by the Trustee, in the opinion of a nationally
recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge (i) the principal of (and
premium, if any) and each instalment of principal (and
premium, if any)
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and interest on the Outstanding Securities of that series on
the Stated Maturity of such principal or instalment of
principal or interest or any date fixed for redemption of such
Outstanding Securities and (ii) any mandatory sinking fund
payments or analogous payments applicable to Securities of
such series on the day on which such payments are due and in
accordance with the terms of this Indenture and of such
Securities;
(2) such deposit shall not cause the Trustee with
respect to the Securities of that series to have a conflicting
interest for purposes of the Trust Indenture Act of 1939 with
respect to the Securities of any series;
(3) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound;
(4) no Event of Default or event which with the
giving of notice or lapse of time, or both, would become an
Event of Default with respect to the Securities of that series
shall have occurred and be continuing on the date of such
deposit and no Event of Default under Section 6.01(d) or
Section 6.01(e) or event which with the giving of notice or
lapse of time, or both, would become an Event of Default under
Section 6.01(d) or Section 6.01(e) shall have occurred and be
continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the
Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount and in the
same manner and at the same times, as would have been the case
if such deposit and defeasance had not occurred; and
(6) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent in this Indenture provided for
relating to the defeasance contemplated by this Section
12.02(b) have been complied with.
(c) The Trustee shall deliver or pay to the Company from time
to time upon a Company Direction any money or Government Obligations
held by it as provided in this Section 12.02 which, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to
be deposited for the purpose for which such money or Government
Obligations were deposited or received.
SECTION 12.03. Application by Trustee of Funds Deposited for Payment of
Securities. All moneys with respect to a particular series of Securities
deposited with the Trustee pursuant to
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Section 12.01 or Section 12.02 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including, except in the
case of Section 12.02(a), the Company acting as its own paying agent), to the
Holders of Securities of such series for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due
thereon for principal (and premium, if any) and interest.
SECTION 12.04. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture, all moneys then held by
any paying agent (other than the Trustee, if the Trustee is serving as a paying
agent) under the provisions of this Indenture shall, upon demand of the Company,
be repaid to it or paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys.
SECTION 12.05. Repayment of Moneys Held by Trustee. Any moneys
deposited with the Trustee or any paying agent for the payment of the principal
(and premium, if any) of or interest on any Securities of any series and not
applied but remaining unclaimed by the Holders of Securities of that series for
two years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have become due and payable, shall be repaid
to the Company by the Trustee or such paying agent on demand; and the Holders of
any of the Securities of that series entitled to receive such payment shall
thereafter look only to the Company for the payment thereof and all liability of
the Trustee or such paying agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once a week for two successive weeks (in each case on any day of
the week) in an authorized newspaper, a notice that such moneys have not been so
applied and that after a date named therein any unclaimed balance of said moneys
then remaining will be returned to the Company.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 13.01. Incorporators, Stockholders, Officers, Directors and
Employees of Company Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement of this Indenture, or of any Security or
for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, stockholder, officer, director or employee, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers, directors or employees, as such, of the Company or of
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in
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any of the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution and delivery of this Indenture and
the issue of Securities hereunder.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 14.01. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 14.02. Acts of Board, Committee or Officer of Successor
Corporation Valid. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
that time be the successor of the Company.
SECTION 14.03. Required Notices or Demands. Except as provided in
Section 6.01(c) and (d), any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
any Holders of Securities of any series to or on the Company may be given or
served by being deposited postage prepaid in a post office letter box in the
United States addressed (until another address is filed by the Company with the
Trustee), as follows: Illinois Tool Works Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to the attention of the Secretary. Any notice, direction,
request or demand by the Company or by any Holder to or upon the Trustee may be
given or made, for all purposes, by being deposited postage prepaid in a post
office letter box in the United States addressed to the Corporate Trust Office.
Any notice required or permitted to be mailed to a Holder of Securities of any
series by the Company or the Trustee pursuant to the provisions of this
Indenture shall be deemed to be properly mailed by being deposited postage
prepaid in a post office letter box in the United States addressed to such
Holder at the address of such Holder as shown on the Security Register for the
particular series of Securities. Any notice required or permitted to be given to
a Holder of unregistered Securities of any series shall be deemed to be properly
given if such notice is published in an authorized newspaper on two separate
days.
SECTION 14.04. Indenture and Securities to Be Construed in Accordance
with the Laws of the State of Illinois. This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of Illinois, and for
all purposes shall be governed by and construed in accordance with the laws of
such State. The descriptive headings of the Articles and Sections of
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this Indenture are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
SECTION 14.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the Company. Upon any application or
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent 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 have been complied with, except that in the case of any such
application or demand as to which the furnishing of any such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion, as the
case may be, need be furnished.
Except as otherwise provided in this Indenture, each certificate or
opinion provided for in this Indenture and delivered to the Trustee with respect
to compliance with a condition or covenant provided for in this Indenture shall
include: (1) a statement that the person making such certificate or opinion has
read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
SECTION 14.06. Payments Due on Holidays. In any case where the date of
maturity of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a business day, then payment of interest
or principal (and premium, if any) need not be made on such date, but may be
made on the next succeeding business day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
SECTION 14.07. Provisions Required by Trust Indenture Act of 1939 to
Control. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such required provision shall
control.
SECTION 14.08. Indenture May be Executed 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.
SECTION 14.09. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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The Trustee hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, ILLINOIS TOOL WORKS INC. and THE FIRST NATIONAL
BANK OF CHICAGO have caused this Indenture to be duly executed, and their
respective corporate seals to be affixed and attested, all as of the day and
year first above written.
ILLINOIS TOOL WORKS INC.
[CORPORATE SEAL] By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Vice President
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Secretary
THE FIRST NATIONAL BANK OF CHICAGO
[CORPORATE SEAL] By /s/ J. R. ▇▇▇▇▇▇
-------------------------------
Vice President
Attest:
/s/ ▇. ▇. ▇▇▇▇▇▇
----------------------------
Assistant Secretary
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STATE OF ILLINOIS
ss.:
COUNTY OF ▇▇▇▇
On this 12th day of November, 1986, before me personally came ▇▇▇▇▇ ▇.
▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say that he
resides in ▇▇▇▇ County, Illinois; that he is Vice President of ILLINOIS TOOL
WORKS INC., one of the parties described in and which executed the above
instrument, and that he signed his name thereto by authority of the Board of
Directors of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand the day and year in
this certificate first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Notary Public
STATE OF ILLINOIS
ss.:
COUNTY OF ▇▇▇▇
On this 13th day of November, 1986, before me personally came J. R.
▇▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say that he
resides in Chicago, Illinois; that he is Vice President of THE FIRST NATIONAL
BANK OF CHICAGO, one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said Corporation, and that he signed his
name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand the day and year in
this certificate first above written.
/s/ ▇. ▇▇▇▇
--------------------------
Notary Public