EXHIBIT 4.1
UNITRIN, INC.,
Issuer
And
[---------------],
Trustee
-----------------------------------
INDENTURE
Dated as of [ ], 200_
-----------------------------------
Senior Debt Securities
CROSS-REFERENCE TABLE1
Section of
Trust Indenture Act of
1939, as amended Section of Indenture
--------------------------------- --------------------
310(a) ............................................. Inapplicable
310(b) ............................................. 7.08
310(c) ............................................. Inapplicable
311(a) ............................................. 7.13
311(b) ............................................. 7.13
311(c) ............................................. Inapplicable
312(b) ............................................. 5.02(c)
312(c) ............................................. Inapplicable
313(a) ............................................. 5.04(a)
313(b) ............................................. 5.04(b)
313(c) ............................................. 5.04(b)
313(d) ............................................. Inapplicable
314(a) ............................................. Inapplicable
314(b) ............................................. Inapplicable
314(c) ............................................. Inapplicable
314(d) ............................................. Inapplicable
314(e) ............................................. Inapplicable
314(f) ............................................. Inapplicable
315(a) ............................................. Inapplicable
315(b) ............................................. Inapplicable
315(c) ............................................. Inapplicable
315(d) ............................................. Inapplicable
315(e) ............................................. Inapplicable
316(a) ............................................. Inapplicable
316(b) ............................................. Inapplicable
316(c) ............................................. Inapplicable
317(a) ............................................. Inapplicable
317(b) ............................................. Inapplicable
318(a) ............................................. Inapplicable
--------
1 This Cross-Reference Table does not constitute part of the Indenture and
shall not have any bearing on the interpretation of any of its terms
or provisions.
TABLE OF CONTENTS(1)
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms
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Affiliate..............................................................1
Authenticating Agent...................................................2
Bankruptcy Law.........................................................2
Board of Directors.....................................................2
Board Resolution.......................................................2
Business Day...........................................................2
Certificate............................................................2
Company................................................................2
Commission.............................................................2
Corporate Trust Office.................................................2
Custodian..............................................................2
Default................................................................2
Deferral Period........................................................3
Depositary.............................................................3
Event of Default.......................................................3
Exchange Act...........................................................3
Global Security........................................................3
Governmental Obligations...............................................3
herein.................................................................4
hereof.................................................................4
hereunder..............................................................4
Indebtedness...........................................................4
Indenture..............................................................4
Interest Payment Date..................................................4
Investment Company Act.................................................4
Officers' Certificate..................................................4
Opinion of Counsel.....................................................5
Original Issue Discount Security.......................................5
Outstanding............................................................5
Paying Agent...........................................................6
Person.................................................................6
Place of Payment.......................................................6
Predecessor Security...................................................6
Redemption Date........................................................6
Redemption Price.......................................................6
Responsible Officer....................................................6
Securities.............................................................7
Securities Act.........................................................7
Securityholder.........................................................7
holder of Securities...................................................7
registered holder......................................................7
Stated Maturity........................................................7
Subsidiary.............................................................7
Trustee................................................................7
Trust Indenture Act....................................................7
Voting Stock...........................................................7
Yield to Maturity......................................................8
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1 This Table of Contents does not constitute part of the Indenture
and shall not have any bearing upon the interpretation of any of
its terms or provisions.
ARTICLE II
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities..............................8
SECTION 2.02 Form of Securities and Trustee's Certificate....................11
SECTION 2.03 Denominations; Provisions for Payment...........................11
SECTION 2.04 Execution and Authentications...................................13
SECTION 2.05 Registration of Transfer and Exchange...........................14
SECTION 2.06 Temporary Securities............................................15
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.................16
SECTION 2.08 Cancellation....................................................17
SECTION 2.09 Benefits of Indenture...........................................17
SECTION 2.10 Authenticating Agent............................................17
SECTION 2.11 Global Securities...............................................18
SECTION 2.12 CUSIP Numbers...................................................19
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption......................................................20
SECTION 3.02 Notice of Redemption............................................20
SECTION 3.03 Payment Upon Redemption.........................................21
SECTION 3.04 Sinking Fund....................................................22
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities...........22
SECTION 3.06 Redemption of Securities for Sinking Fund.......................22
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest......................23
SECTION 4.02 Maintenance of Office or Agency.................................24
SECTION 4.03 Paying Agents...................................................24
SECTION 4.04 Statement by Officers as to Default.............................25
SECTION 4.05 Existence.......................................................26
SECTION 4.06 Waiver of Certain Covenants.....................................26
SECTION 4.07 Appointment to Fill Vacancy in Office of Trustee................26
SECTION 4.08 Compliance with Consolidation Provisions........................26
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses
of Securityholders..............................................27
SECTION 5.02 Preservation Of Information; Communications
With Securityholders............................................27
SECTION 5.03 Reports by the Company..........................................27
SECTION 5.04 Reports by the Trustee..........................................28
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default...............................................28
SECTION 6.02 Collection of Indebtedness and Suits for
Enforcement by Trustee..........................................31
SECTION 6.03 Application of Moneys Collected.................................33
SECTION 6.04 Limitation on Suits.............................................33
SECTION 6.05 Rights and Remedies Cumulative; Delay or
Omission Not Waiver.............................................34
SECTION 6.06 Control by Securityholders......................................35
SECTION 6.07 Undertaking to Pay Costs........................................35
SECTION 6.08 Waiver of Past Defaults.........................................35
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.................36
SECTION 7.02 Certain Rights of Trustee......................................37
SECTION 7.03 Trustee Not Responsible for Recitals or
Issuance or Securities.........................................39
SECTION 7.04 May Hold Securities............................................39
SECTION 7.05 Moneys Held in Trust...........................................39
SECTION 7.06 Compensation and Reimbursement.................................39
SECTION 7.07 Reliance on Officers' Certificate..............................40
SECTION 7.08 Disqualification; Conflicting Interests........................40
SECTION 7.09 Corporate Trustee Required; Eligibility........................40
SECTION 7.10. Resignation and Removal; Appointment of Successor..............41
SECTION 7.11 Acceptance of Appointment By Successor.........................42
SECTION 7.12 Merger, Conversion, Consolidation or
Succession to Business.........................................44
SECTION 7.13 Preferential Collection of Claims Against the Company..........44
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders..........................44
SECTION 8.02 Proof of Execution by Securityholders..........................45
SECTION 8.03 Who May be Deemed Owners.......................................45
SECTION 8.04 Certain Securities Owned by Company Disregarded................46
SECTION 8.05 Actions Binding on Future Securityholders.......................46
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of Securityholders..47
SECTION 9.02 Supplemental Indentures With Consent of Securityholders.........48
SECTION 9.03 Effect of Supplemental Indentures...............................49
SECTION 9.04 Securities Affected by Supplemental Indentures..................49
SECTION 9.05 Execution of Supplemental Indentures............................50
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 10.01 When the Company May Consolidate, Merge, Etc..................50
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.......................51
SECTION 11.02 Discharge of Obligations......................................52
SECTION 11.03 Deposited Moneys to be Held in Trust..........................52
SECTION 11.04 Payment of Moneys Held by Paying Agents.......................52
SECTION 11.05 Repayment to Company..........................................53
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No Recourse...................................................53
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01 Company's Option to Effect Defeasance or
Covenant Defeasance............................................54
SECTION 13.02 Defeasance and Discharge.......................................54
SECTION 13.03 Covenant Defeasance............................................55
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance................55
SECTION 13.05 Deposited Money and Government Obligations to Be Held
In Trust; Miscellaneous Provisions.............................57
SECTION 13.06 Reinstatement..................................................57
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Effect on Successors and Assigns...............................58
SECTION 14.02 Actions by Successor...........................................58
SECTION 14.03 Notices........................................................58
SECTION 14.04 Governing Law..................................................59
SECTION 14.05 Treatment of Securities as Debt................................59
SECTION 14.06 Compliance Certificates and Opinions...........................59
SECTION 14.07 Payments on Business Days......................................59
SECTION 14.08 Conflict with Trust Indenture Act..............................60
SECTION 14.09 Counterparts...................................................60
SECTION 14.10 Separability...................................................60
SECTION 14.11 Assignment.....................................................60
INDENTURE, dated as of ____, 200_, between Unitrin, Inc., a
Delaware corporation (the "Company"), and [o], as trustee (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 of unsecured debt securities, debentures, notes, bonds, or other
evidences of indebtedness (hereinafter referred to as the "Securities"), in
an unlimited aggregate principal amount to be issued from time to time in
one or more series, as provided in this Indenture;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase
of the Securities by the holders thereof, it is mutually covenanted and
agreed as follows for the equal and ratable benefit of the holders of
Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
--------------------
The terms defined in this Section (except as in this Indenture
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 and shall
include the plural as well as the singular. All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933,
as amended (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this instrument.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. When used with respect
to any Person, "control" means the power, directly or indirectly, to direct
or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" and "under common
control with" have meanings correlative to the foregoing.
"Authenticating Agent" means an authenticating agent with respect
to all or any of the series of Securities appointed with respect to all or
any series of the Securities by the Trustee pursuant to Section 2.10.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal
or state bankruptcy, insolvency, reorganization or other law for the relief
of debtors.
"Board of Directors" means the Board of Directors of the Company
or any duly authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" means, with respect to any series of Securities,
any day other than a day on which federal or state banking institutions in
the Borough of Manhattan, The City of New York, are authorized or obligated
by law, executive order or regulation to close.
"Certificate" means a certificate signed by the principal
executive officer, the principal financial officer or the principal
accounting officer of the Company. The Certificate need not comply with the
provisions of Section 14.06.
"Company" means Unitrin, Inc., a corporation duly organized and
existing under the laws of the State of Delaware, and, subject to the
provisions of Article Ten, shall also include its successors and assigns.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
"Corporate Trust Office" means the office of the Trustee at which,
at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at [o], New York,
New York [o].
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that with notice or
lapse of time, or both, would constitute an Event of Default.
"Deferral Period," with respect to any series of Securities, means
any period during which the Company elects to extend the interest payment
period on such series of Securities pursuant to Section 4.01(b); provided
that a Deferral Period (or any extension thereof) may not extend beyond the
Stated Maturity or the Redemption Date of any Security of such series and
must end on an Interest Payment Date or, if the Securities are redeemed, on
an Interest Payment Date or the Redemption Date for such Securities.
"Depositary" means, with respect to Securities of any series, for
which the Company shall determine that such Securities will be issued as a
Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to either Section 2.01 or
Section 2.11.
"Event of Default" means, with respect to Securities of a
particular series any event specified in Section 6.01 (as may be modified
as contemplated by Section 2.01(16)), continued for the period of time, if
any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Global Security" means, with respect to any series of Securities,
a Security executed by the Company and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary
or its nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America that, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such Governmental Obligation or a specific
payment of principal of or interest on any such Governmental Obligation
held by such custodian for the account of the holder of such depositary
receipt; provided, however, that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian
in respect of the Governmental Obligation or the specific payment of
principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.
"herein," "hereof" and "hereunder," and other words of similar
import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Indebtedness" of any Person means the principal of and premium,
if any, and interest due on indebtedness of such Person, whether
outstanding on the date of this Indenture or thereafter created, incurred
or assumed, which is (a) indebtedness for money borrowed, (b) any
obligation of, or any obligation guaranteed by, such Person for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, (c) any obligation of, or any such
obligation guaranteed by, such Person evidenced by bonds, debentures, notes
or similar written instruments, including obligations assumed or incurred
in connection with the acquisition of property, assets or businesses
(provided, however, that the deferred purchase price of any other business
or property or assets shall not be considered Indebtedness if the purchase
price thereof is payable in full within 90 days from the date on which such
indebtedness was created), (d) any obligations of such Person as lessee
under leases required to be capitalized on the balance sheet of the lessee
under generally accepted accounting principles, (e) all obligations of
such Person for the reimbursement on any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction, (f)
all obligations of such Person in respect of interest rate swap, cap or
other agreements, interest rate future or options contracts, currency swap
arrangements, currency future or option contracts and other similar
agreements, (g) all obligations of the types referred to in clauses (a)
through (f) above of other persons for the payment of which such Person is
responsible or liable as obligor, guarantor or otherwise, (h) all
obligations of the types referred to in clauses (a) through (g) above of
other persons secured by any lien on any property or asset of such Person
(whether or not such obligation is assumed by such Person), and (i) any
amendments, renewals, extensions, modifications and refundings of any of
the foregoing.
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the terms
of particular series of Securities established as contemplated by Section 2.01.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on a Security of a
particular series.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to time.
"Officers' Certificate" means a certificate signed by the Chief
Financial Officer, President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 14.06, if and to the extent
required by the provisions thereof.
"Opinion of Counsel" means an opinion in writing of legal counsel,
who may be an employee of or counsel for the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such opinion shall include
the statements provided for in Section 14.06, if and to the extent required
by the provisions thereof.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01(b).
"Outstanding," when used with reference to Securities of any series,
means, subject to the provisions of Section 8.04, as of any particular time,
all Securities of that series theretofore authenticated and delivered by the
Trustee under this Indenture, except (a) Securities theretofore canceled by
the Trustee or any Paying Agent, or delivered to the Trustee or any Paying
Agent for cancellation or that have previously been canceled; (b) Securities
or portions thereof for the payment or redemption of which moneys or Govern-
mental Obligations 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, however, that if such
Securities or portions of such Securities are to be redeemed prior to the
maturity thereof, notice of 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; (c) Securities in lieu of or in
substitution for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.07; and (d) Securities as to
which Defeasance (as defined in Section 13.02) has been effected pursuant to
Section 13.02, provided, however, that in determining whether the holders of
the requisite principal amount of the Outstanding Securities have given, made
or taken any request, demand, authorization, direction, notice, consent,
waiver or other action hereunder as of any date, (A) the principal amount of
an Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and payable
as of such date upon acceleration of the maturity thereof to such date
pursuant to Section 6.01(b), (B) if, as of such date, the principal amount
payable at the Stated Maturity of a Security is not determinable, the
principal amount of such Security which shall be deemed to be Outstanding
shall be the amount as specified or determined as contemplated by Section
2.01, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner
provided as contemplated by Section 2.01, of the principal amount of such
Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D)
Securities beneficially owned by the Company or any other obligor upon such
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, waiver or other action,
only Securities which a Responsible Officer of the Trustee knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited
liability company, business trust, joint- venture, joint-stock company,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 2.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Responsible Officer," when used with respect to the Trustee,
means the Chief Executive Officer, the President, any Vice-President, the
Secretary, the Treasurer, any trust officer, any corporate 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 or her knowledge of and familiarity with
the particular subject.
"Securities" has the meaning stated in the preamble of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securityholder," "holder of Securities," "registered holder," or
other similar term, means the Person or Persons in whose name or names a
particular Security shall be registered on the books of the Company kept for
that purpose in accordance with the terms of this Indenture.
"Stated Maturity," when used with respect to any Security or any
install ment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation
at least a majority of whose outstanding Voting Stock shall at the time be
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, limited liability company, joint venture or similar
entity, at least a majority of whose outstanding partnership, membership or
similar interests shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership or limited liability company
of which such Person or any of its Subsidiaries is a general partner or
principal managing member.
"Trustee" means [o] and, subject to the provisions of Article Seven,
shall also include its successors and assigns and, if at any time there is
more than one Person acting in such capacity hereunder, "Trustee" shall mean
each such Person. The term "Trustee" as used with respect to a particular
series of the Securities shall mean the trustee with respect to that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in
effect at the date of execution of this instrument.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest
(however designated) in such Person having ordinary voting power for the
election of a majority of the directors (or the equiva lent) of such Person,
other than shares, interests, participations or other equivalents having such
power only by reason of the occurrence of a contingency.
"Yield to Maturity" means the yield to maturity on a series of
securities calculated at the time of issuance of such series or, if
applicable, of the most recent redetermination of interest on such series,
and calculated in accordance with accepted financial practice.
ARTICLE II
DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series up to the aggregate principal amount of
Securities of that series from time to time authorized by or pursuant to a
Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Securities of any
series, there shall be established in or pursuant to a Board Resolution of
the Company, and set forth in an Officers' Certificate of the Company, or
established in one or more indentures supplemental hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of that series);
(3) the price or prices at which the Company will sell the
Securities;
(4) the Stated Maturity of the Securities;
(5) the rate or rates at which the Securities of the series
shall bear interest or the manner of calculation of such rate or
rates, if any;
(6) the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest will be
payable or the manner of determination of such Interest Payment
Dates and the record date for the determination of holders to whom
interest is payable on any such Interest Payment Dates;
(7) the right, if any, to extend the interest payment
periods and the duration of any such Deferral Period, including the
maximum consecutive period during which interest payment periods may
be extended;
(8) if the amount of principal of or any premium or
interest on any Securities of the series may be determined with
reference to any index, formula, or other method, such as one or
more currencies, commodities, equity indices or other indices, and
the manner in which such amounts shall be determined;
(9) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable;
(10) the period or periods within which, the price or
prices at which and the terms and conditions upon which, Securities
of the series may be redeemed, in whole or in part, at the option of
the Company;
(11) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any sinking
fund or analogous provisions (including payments made in cash in
participation of future sinking fund obligations) or at the option
of a holder thereof and the period or periods within which, the
price or prices at which, and the terms and conditions upon which,
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(12) if other than denominations of one thousand U.S.
dollars ($1,000) or any integral multiple thereof, the denominations
in which the Securities of the series shall be issuable;
(13) if other than the full principal amount thereof, the
portion, or methods of determining the portion, of the principal
amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.01;
(14) if other than the currency of the United States of
America, the currency, currencies or currency units or composite
currencies in which the principal of or any premium or interest on
any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 1.01;
(15) provisions granting special rights to holders of the
Securities upon the occurrence of specific events;
(16) any deletions from, modifications of or additions to
the Events of Default or the Company's covenants provided for with
respect to the Securities of the series;
(17) if applicable, that the Securities of the series, in
whole or any specified part, shall be defeasible pursuant to Section
13.02 or Section 13.03 or both such Sections and, if other than by a
Board Resolution, the manner in which any election by the Company to
defease such Securities shall be evidenced;
(18) whether the Securities will be convertible into or
exchangeable for shares of common stock, preferred stock or other
securities or property of the Company and, if so, the terms and
conditions upon which such Securities will be so convertible or
exchangeable, including the conversion or exchange price and the
conversion or exchange period;
(19) whether the Securities are issuable as a Global
Security and, in such case, the identity for the Depositary for such
series and the terms and conditions upon which Global Securities may
be exchanged for certificated debt securities;
(20) any special tax implications of the Securities of the
series, including any provisions for Original Issue Discount
Securities, if offered;
(21) any change in the right of the Trustee or the
requisite holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.01;
(22) any trustees, authenticating or Paying Agents,
transfer agents or registrars or other agents with respect to the
Securities; and
(23) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture, except as
permitted by Section 9.01(10)), but which may modify or
delete any
provision of this Indenture with respect to such series, provided
that no such term may modify or delete any provision hereof if
imposed by the Trust Indenture Act, and provided, further that any
modification or deletion of the rights, duties or immunities of the
Trustee hereunder shall have been consented to in writing by the
Trustee.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate of the Company setting forth the terms
of the series.
Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal
is payable, with different rates of interest, if any, or different methods by
which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates.
SECTION 2.02 Form of Securities and Trustee's Certificate.
---------------------------------------------
The Securities of any series and the Trustee's certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purpose as set forth in one or more indentures supplemental hereto
or as provided in a Board Resolution of the Company and as set forth in an
Officers' Certificate of the Company and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may
be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Securities of that series may be listed, or to conform to usage.
SECTION 2.03 Denominations; Provisions for Payment.
--------------------------------------
The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(12). The Securities of a particular series
shall bear interest payable on the dates and at the rate specified with
respect to that series. Unless otherwise provided pursuant to Section 2.01,
the principal of and the interest on the Securities of any series, as well as
any premium thereon in case of redemption thereof prior to maturity, shall be
payable in the coin or currency of the United States of America that at the
time is legal tender for public and private debt, at the office or agency of
the Company maintained for that purpose in the Borough of Manhattan, the City
and State of New York. Each Security shall be dated the date of its
authentication. Unless otherwise provided pursuant to Section 2.01, interest
on the Securities shall be computed on the basis of a 360-day year composed
of twelve 30-day months.
The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In the
event that any Security of a particular series or portion thereof is called
for redemption and the redemption date is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment
Date, interest on such Security will be paid upon presentation and surrender
of such Security as provided in Section 3.03.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 2.01, any interest on any
Security that is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date for Securities of the same series (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
holder on the relevant regular record date by virtue of having been such
holder; and such Defaulted Interest shall be paid by the Company, at its
election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest
on Securities to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered at the close
of business on a special record date for the payment of such
Defaulted Interest, which shall be fixed in the following manner:
the Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than 15 nor less than 10 days prior
to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage
prepaid, to each Securityholder at his or her address as it appears
in the Security Register (as hereinafter defined), not less than 10
days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered on such
special record date and shall be no longer payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest
on any Securities in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of the Company or
one or more indentures supplemental hereto establishing the terms of any
series of Securities pursuant to Section 2.01 hereof, the term "regular
record date" as used in this Section with respect to a series of Securities
with respect to any Interest Payment Date for such series shall mean either
the fifteenth day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding the month in which
an Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.
Subject to the foregoing provisions of this Section, each Security
of a series delivered under this Indenture upon transfer of or in exchange
for or in lieu of any other Security of such series shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.
SECTION 2.04 Execution and Authentications.
-----------------------------
The Securities shall be signed on behalf of the Company by its
Chief Executive Officer, the President or one of its Vice Presidents, under
its corporate seal attested by its Secretary or one of its Assistant
Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any Person who
shall have been Chief Executive Officer, President or a Vice President
thereof, notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such Person shall have ceased to
be the Chief Executive Officer, President or a Vice President of the
Company. The seal of the Company may be in the form of a facsimile of such
seal and may be impressed, affixed, imprinted or otherwise reproduced on
the Securities. The Securities may contain such notations, legends or
endorsements required by law, stock exchange rule or usage. Each Security
shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Securities, signed by its Chief Executive Officer, the President or any
Vice President and its Secretary or any Assistant Secretary, and the
Trustee in accordance with such written order shall authenticate and
deliver such Securities.
In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of
this Indenture.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner that is not reasonably acceptable to the
Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
-------------------------------------
(a) Securities of any series may be exchanged upon presentation
thereof at the office or agency of the Company designated for such purpose in
the Borough of Manhattan, the City and State of New York, for other
Securities of such series of authorized denominations, and for a like
aggregate principal amount, upon payment of a sum sufficient to cover any tax
or other governmental charge in relation thereto, all as provided in this
Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Security or Securities of the
same series that the Securityholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as in
this Article provided and which at all reasonable times shall be open for
inspection by the Trustee. The registrar for the purpose of registering
Securities and transfer of Securities as herein provided shall be appointed
as authorized by Board Resolution (the "Security Registrar").
Upon surrender for transfer of any Security at the office or agency
of the Company designated for such purpose, the Company shall execute, the
Trustee shall authenticate and such office or agency shall deliver in the
name of the transferee or transferees a new Security or Securities of the
same series as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company or the Security
Registrar, duly executed by the registered holder or by such holder's duly
authorized attorney in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Securities, or issue of new Securities in case of partial
redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, the second paragraph of
Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or
register the transfer of any Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of less than all the Outstanding Securities of the same series and
ending at the close of business on the day of such mailing, nor (ii) to
register the transfer of or exchange any Securities of any series or portions
thereof called for redemption. The provisions of this Section 2.05 are, with
respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.06 Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in the form of
the definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary Security
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities of such series. Without
unnecessary delay the Company will execute and will furnish definitive
Securities of such series and thereupon any or all temporary Securities of
such series may be surrendered in exchange therefor (without charge to the
holders), at the office or agency of the Company designated for the purpose
in the Borough of Manhattan, the City and State of New York, and the Trustee
shall authenticate and such office or agency shall deliver in exchange for
such temporary Securities an equal aggregate principal amount of definitive
Securities of such series, unless the Company advises the Trustee to the
effect that definitive Securities need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Securities
of such series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
------------------------------------------------
In case any temporary or definitive Security shall become mutilated
or be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company's request the Trustee (subject
as aforesaid) shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution
for the Security so destroyed, lost or stolen. In every case the applicant
for a substituted Security shall furnish to the Company and the Trustee such
security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's Security
and of the ownership thereof. The Trustee may authenticate any such
substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Security, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith. In case any Security that has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute 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 to the
Company and the Trustee such security or indemnity as they may require to
save them harmless, and, in case of destruction, loss or theft, evidence to
the satisfaction of the Company and the Trustee of the destruction, loss or
theft of such Security and of the ownership thereof.
Every replacement Security issued pursuant to the provisions of this
Section shall constitute an additional contractual obligation of the Company
whether or not the mutilated, destroyed, lost or stolen Security shall be
found at any time, or be enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder. All Securities
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 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.
------------
All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or
any Paying Agent, be delivered to the Trustee for cancellation, or, if
surrendered to the Trustee, shall be canceled by it, and no Securities shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On request of the Company at the time of
such surrender, the Trustee shall deliver to the Company canceled Securities
held by the Trustee. In the absence of such request the Trustee may dispose
of canceled Securities in accordance with its standard procedures and deliver
a certificate of disposition to the Company. If the Company shall otherwise
acquire any of the Securities, however, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, 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 such covenants, conditions and
provisions being for the sole benefit of the parties hereto and of the
holders of the Securities.
SECTION 2.10 Authenticating Agent.
--------------------
So long as any of the Securities of any series remain Outstanding
there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent
shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, transfer or partial
redemption thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. All references in this
Indenture to the authentication of Securities by the Trustee shall be deemed
to include authentication by an Authenticating Agent for such series. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation that has a combined capital and surplus, as most recently
reported or determined by it, sufficient under the laws of any jurisdiction
under which it is organized or in which it is doing business to conduct a
trust business, and that is otherwise authorized under such laws to conduct
such business and is subject to supervision or examination by federal or
state authorities. If at any time any Authenticating Agent shall cease to be
eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11 Global Securities.
-----------------
(a) If the Company shall establish pursuant to Section 2.01 that
the Securities of a particular series are to be issued as a Global
Security, then the Company shall execute and the Trustee shall, in
accordance with Section 2.04, authenticate and deliver, a Global Security
that (i) shall represent, and shall be denominated in an amount equal to
the aggregate principal amount of, all of the Outstanding Securities of
such series, (ii) shall be registered in the name of the Depositary or its
nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole
but not in part, only to another nominee of the Depositary or to a
successor Depositary or to a nominee of such successor Depositary." Any
endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in the
written request signed in the name of the Company, by the Chief Executive
Officer, the President or any Vice President and by the Secretary or an
Assistant Secretary thereof to be delivered to the Trustee pursuant to
Section 2.04 or Section 2.06.
(b) Notwithstanding the provisions of Section 2.05, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.05, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no
longer be registered or in good standing under the Exchange Act, or other
applicable statute or regulation, and a successor Depositary for such series
is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such condition, as the case may be, this
Section 2.11 shall no longer be applicable to the Securities of such series
and the Company will execute, and subject to Section 2.05, the Trustee will
authenticate and deliver the Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. In addition,
the Company may at any time determine that the Securities of any series shall
no longer be represented by a Global Security and that the provisions of this
Section 2.11 shall no longer apply to the Securities of such series. In such
event the Company will execute and subject to Section 2.05, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver the Securities of such series in
definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Security of such series in exchange for such Global Security. Upon the
exchange of the Global Security for such Securities in definitive registered
form without coupons, in authorized denominations, the Global Security shall
be canceled by the Trustee. Such Securities in definitive registered form
issued in exchange for the Global Security pursuant to this Section 2.11(c)
shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.
SECTION 2.12 CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Securityholders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
----------
The Company may redeem the Securities of any series issued hereunder
on and after the dates and in accordance with the terms established for such
series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
--------------------
(a) In case the Company shall desire to exercise such right to
redeem all or, as the case may be, a portion of the Securities of any series
in accordance with the right reserved so to do, the Company shall, or shall
cause the Trustee to, give notice of such redemption to holders of the
Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 30 days and not more than
90 days before the date fixed for redemption of that series to such holders
at their last addresses as they shall appear upon the Security Register
unless a shorter period is specified in the Securities to be redeemed. Any
notice that is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the registered holder
receives the notice. In any case, failure duly to give such notice to the
holder of any Security of any series designated for redemption in whole or in
part, or any defect in the notice, shall not affect the validity of the
proceedings for the redemption of any other Securities of such series or any
other series. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with any such
restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are to
be redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon
presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that from
and after said date interest will cease to accrue and that the redemption is
for a sinking fund, if such is the case. If less than all the Securities of a
series are to be redeemed, the notice to the holders of Securities of that
series to be redeemed in whole or in part shall specify the particular
Securities to be so redeemed. In case any Security is to be redeemed in part
only, the notice that relates to such Security 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 such series in principal amount equal to the unredeemed portion
thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed,
the Company shall give the Trustee at least 45 days' notice in advance of the
date fixed for redemption as to the aggregate principal amount of Securities
of the series to be redeemed, and thereupon the Trustee shall select, by lot
or in such other manner as it shall deem appropriate and fair in its
discretion and that may provide for the selection of a portion or portions
(equal to one thousand U.S. dollars ($1,000) or any integral multiple
thereof) of the principal amount of such Securities of a denomination larger
than $1,000, the Securities to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Securities to be
redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by its Chief Executive Officer, the
President or any Vice President, instruct the Trustee or any Paying Agent
to call all or any part of the Securities of a particular series for
redemption and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Company or its own name as
the Trustee or such Paying Agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such Paying
Agent, the Company shall deliver or cause to be delivered to, or permit to
remain with, the Trustee or such Paying Agent, as the case may be, such
Security Register, transfer books or other records, or suitable copies or
extracts therefrom, sufficient to enable the Trustee or such Paying Agent
to give any notice by mail that may be required under the provisions of
this Section.
SECTION 3.03 Payment Upon Redemption.
-----------------------
(a) If the giving of notice of redemption shall have been completed
as above provided, the Securities or portions of Securities of the series to
be redeemed 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 interest
on such Securities or portions of Securities shall cease to accrue on and
after the date fixed for redemption, unless the Company shall default in the
payment of such redemption price and accrued interest with respect to any
such Security or portion thereof. On presentation and surrender of such
Securities on or after the date fixed for redemption at the place of payment
specified in the notice, said Securities shall be paid and redeemed at the
applicable redemption price for such series, together with interest accrued
thereon to the date fixed for redemption (but if the date fixed for
redemption is an interest payment date, the interest installment payable on
such date shall be payable to the registered holder at the close of business
on the applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new Security
of the same series of authorized denominations in principal amount equal to
the unredeemed portion of the Security so presented.
SECTION 0 Sinking Fund.
------------
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable
to any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.05. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (i) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) and (ii) may
apply as a credit Securities of a series that have been redeemed either at
the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such
series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series, provided that such Securities have
not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the redemption price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.06 Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of the series, the portion
thereof, if any, that is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 3.05 and the basis for such
credit and will, together with such Officers' Certificate, deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in
Section 3.02 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
3.02. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 3.03.
ARTICLE IV
CERTAIN COVENANTS
SECTION 4.01 Payment of Principal, Premium and Interest.
------------------------------------------
(a) The Company shall pay or cause to be paid the principal of and
premium, if any, and interest (including interest accruing during any
Deferral Period) on the Securities on or prior to the dates and in the manner
provided in such Securities or pursuant to this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the
applicable due date if on such date the Trustee or the Paying Agent holds, in
accordance with this Indenture, money sufficient to pay all of such
installment then due.
(b) Notwithstanding the provisions of Section 4.01(a) or any other
provision herein to the contrary, the Company shall have the right, as
provided in an Officer's Certificate or Supplemental Indenture issued
pursuant to Section 2.01, in its sole and absolute discretion at any time and
from time to time while the Securities of any series are outstanding, so long
as no Event of Default with respect to such series of Securities has occurred
and is continuing, to defer payments of interest by extending the interest
payment period for such series of Securities for the maximum consecutive
period, if any, specified for such series of Securities, provided that such
Deferral Period (or any extension thereof) may not extend beyond the Stated
Maturity date or Redemption Date of any Security of such series, and must end
on an Interest Payment Date or, if the Securities are redeemed, on an
Interest Payment Date or the Redemption Date for such Securities, and
provided further that at the end of each Deferral Period the Company shall
pay all interest then accrued and unpaid (together with interest thereon to
the extent permitted by applicable law at the rate accruing on such
Securities). Prior to the termination of a Deferral Period, the Company may
shorten or may further extend the interest payment period for such series of
Securities, provided that such Deferral Period together with all such
previous and further extensions may not exceed the maximum consecutive period
specified for such series of Securities, end on a date other than an Interest
Payment Date or extend beyond the Stated Maturity date or Redemption Date of
any Security of such series. The Company shall give the Trustee written
notice of the Company's election to begin a Deferral Period for any series of
Securities and any shortening or extension thereof at least five Business
Days prior to the date the interest on such Securities is payable. The
Company shall give or cause the Trustee to give notice (a form of which shall
be provided by the Company to the Trustee) of the Company's election to begin
a Deferral Period to the Holders by first class mail, postage prepaid.
SECTION 4.02 Maintenance of Office or Agency.
-------------------------------
So long as any series of the Securities remains Outstanding, the
Company agrees to maintain an office or agency in the Borough of Manhattan,
the City and State of New York, with respect to each such series and at such
other location or locations as may be designated as provided in this Section
4.02, where (i) Securities of that series may be presented for payment, (ii)
Securities of that series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and demands to or
upon the Company in respect of the Securities of that series and this
Indenture may be given or served, such designation to continue with respect
to such office or agency until the Company shall, by written notice signed by
its Chief Executive Officer, President or a Vice President and delivered to
the trustee, designate some other office or agency for such purposes or any
of them. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 4.03 Paying Agents.
-------------
(a) If the Company shall appoint one or more Paying Agents for all
or any series of the Securities, other than the Trustee, the Company will
cause each such Paying Agent 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:
(1) that 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 that series (whether such sums have been paid to
it by the Company or by any other obligor of such Securities) in
trust for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor of such Securities) to make any
payment of the principal of and premium, if any or interest on the
Securities of that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent; and
(4) that it will perform all other duties of Paying Agent as
set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with respect to
any series of the Securities, it will on or before each due date of the
principal of, and premium, if any, or interest on Securities of that series,
set aside, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay such principal, and premium, if any,
or interest so becoming due on Securities of that series until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of such action, or any failure (by it or any
other obligor on such Securities) to take such action. Whenever the Company
shall have one or more Paying Agents for any series of Securities, it will,
prior to each due date of the principal of, and premium, if any, or interest
on any Securities of that series, deposit with the Paying Agent a sum
sufficient to pay the principal, and premium, if any, or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of this action or
failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i)
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Section 11.05, and (ii) the Company may at any time, for
the purpose of obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same terms and conditions as those upon which
such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
SECTION 4.04 Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
SECTION 4.05 Existence.
---------
Subject to Article Ten, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the holders.
SECTION 4.06 Waiver of Certain Covenants.
---------------------------
Except as otherwise specified as contemplated by Section 2.01 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term,
provision or condition set forth in any covenant provided pursuant to
Sections 2.01(16), 9.01(4) or 9.01(7) for the benefit of the holders of such
series or in Section 4.06 if before the time for such compliance the holders
of at least a majority in aggregate principal amount of the Outstanding
Securities of such series shall, by act of such holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
SECTION 4.07 Appointment to Fill Vacancy in Office of Trustee.
------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.08 Compliance with Consolidation Provisions.
----------------------------------------
The Company will not, while any of the Securities remain
Outstanding, consolidate with, or merge into, or merge into itself, or sell
or convey all or substantially all of its property to any other company
unless the provisions of Article Ten hereof are complied with.
ARTICLE V
SECURITYHOLDERS' LISTS AND REPORTS BY
THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Securityholders.
----------------
The Company will furnish or cause to be furnished to the Trustee (a)
semiannually on [o] and [o], a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series
of Securities as of such regular record date, provided that the Company shall
not be obligated to furnish or cause to furnish such list at any time that
the list shall not differ in any respect from the most recent list furnished
to the Trustee by the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; provided, however, that, in
either case, no such list need be furnished for any series for which the
Trustee shall be the Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With
------------------------------------------------
Securityholders.
---------------
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Securities contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Securities received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to their
rights under this Indenture or under the Securities.
SECTION 5.03 Reports by the Company.
----------------------
(a) The Company covenants and agrees to file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) that the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such sections, then
to file with the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports that may be
required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and
the Commission, in accordance with the rules and regulations prescribed from
time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Company with the conditions and
covenants provided for in this Indenture as may be required from time to time
by such rules and regulations.
(c) The Company covenants and agrees to transmit to the
Securityholders, such summaries of any information, documents and reports
required to be filed by the Company pursuant to subsections (a) and (b) of
this Section as may be required by the Trust Indenture Act and the rules and
regulations prescribed from time to time by the Commission.
SECTION 5.04 Reports by the Trustee.
----------------------
(a) On or before [o] in each year in which any of the Securities are
Outstanding, the Trustee shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security
Register, a brief report dated as of the preceding [o], if and to the extent
required under Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the
Trust Indenture Act.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so listed)
and also with the Commission. The Company agrees to notify the Trustee when
any Securities become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
-----------------
(a) Whenever used herein with respect to Securities of a particular
series, "Event of Default" means any one or more of the following events that
has occurred and is continuing, unless such event is specifically deleted or
modified in accordance with Section 2.01:
(1) the Company defaults in the payment of any installment
of interest upon any of the Securities of that series, as and when
the same shall become due and payable, and continuance of such
default for a period of 30 days; provided, however, that during any
Deferral Period for the Securities of that series, failure to pay
interest on the Securities of that series shall not constitute a
default in the payment of interest for this purpose; and, provided,
further, that a valid extension of an interest payment period by the
Company in accordance with the terms of any indenture supplemental
hereto, shall not constitute a default in the payment of interest
for this purpose;
(2) the Company defaults in the payment of the principal
of, or premium, if any, on any of the Securities of that series as
and when the same shall become due and payable whether at maturity,
upon redemption, because of acceleration or otherwise, or in any
payment required by any sinking or analogous fund established with
respect to that series; provided, however, that a valid extension of
the maturity of such Securities in accordance with the terms of any
indenture supplemental hereto shall not constitute a default in the
payment of principal or premium, if any;
(3) the Company fails to observe or perform any other of
its covenants or agreements with respect to that series contained in
this Indenture or otherwise established with respect to that series
of Securities pursuant to Section 2.01 hereof (other than a covenant
or agreement that has been expressly included in this Indenture
solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days after the date on which
written notice of such failure, requiring the same to be remedied
and stating that such notice is a "Notice of Default" hereunder,
shall have been given to the Company by the Trustee, by registered
or certified mail, or to the Company and the Trustee by the holders
of at least 25% in principal amount of the Securities of that series
at the time Outstanding;
(4) the entry by a court of competent jurisdiction of:
(i) a decree or order for relief in respect of the
Company in an involuntary proceeding under any applicable
Bankruptcy Law and such decree or order shall remain
unstayed and in effect for a period of 90 consecutive days;
(ii) a decree or order adjudging the Company to be
insolvent, or approving a petition seeking reorganization,
arrangement, adjustment or composition of the Company and
such decree or order shall remain unstayed and in effect
for a period of 90 consecutive days; or
(iii) a final and non-appealable order appointing
a Custodian of the Company or of any substantial part of
the property of the Company, or ordering the winding up or
liquidation of the affairs of the Company;
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law: (i) commences a voluntary case or proceeding; (ii)
consents to the entry of an order for relief against it in an
involuntary case or proceeding; (iii) files a petition or answer or
consent seeking reorganization or relief or consents to such filing
or to the appointment of or taking possession by a Custodian of it
or for all or substantially all of its property, and such Custodian
is not discharged within 60 days; (iv) makes a general assignment
for the benefit of its creditors; or (v) admits in writing its
inability to pay its debts generally as they become due; or
(6) any other Event of Default provided for pursuant to
Section 2.01 with respect to Securities of that series.
(b) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 2.01, if an Event of
Default (other than an Event of Default specified in Sections 6.01(a)(5) or
6.01(a)(6)) with respect to Securities of any series at the time Outstanding
occurs and is continuing, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then
Outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Securityholders), may declare the principal of all
the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms 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. If an Event of Default specified in Sections
6.01(a)(5) or 6.01(a)(6) with respect to Securities of any series at the time
Outstanding occurs, the principal amount of all the Securities of that series
(or, if any Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified
by the terms thereof) shall automatically, and without any declaration or
other action on the part of the Trustee or any holder, become immediately due
and payable.
(c) At any time after the principal of the Securities of that series
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 holders of a majority in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if: (i) the Company has paid or deposited
with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Securities of that series and the principal of , and premium, if
any, on any and all Securities of that series that shall have become due
otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that such payment is enforceable under
applicable law, upon overdue installments of interest, at the rate or Yield
to Maturity (in the case of Original Issue Discount Securities) expressed in
the Securities of that series (or at the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) to the date of
such payment or deposit) and the amount payable to the Trustee under Section
7.06, and (ii) any and all Events of Default under the Indenture with respect
to such series, other than the nonpayment of principal on Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) that shall not have become due by their terms, shall
have been remedied or waived as provided in Section 6.08.
No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Securities of that series under this Indenture and such
proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, and the
Trustee shall be restored respectively to their former positions and rights
hereunder, and all rights, remedies and powers of the Company and the Trustee
shall continue as though no such proceedings had been taken.
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
(a) The Company covenants that (1) in case it shall default in the
payment of any installment of interest on any of the Securities of a series,
or any payment required by any sinking or analogous fund established with
respect to that series as and when the same shall have become due and
payable, and such default shall have continued for a period of 90 Business
Days, or (2) in case it shall default in the payment of the principal of, or
premium, if any, on any of the Securities of a series when the same shall
have become due and payable, whether upon maturity of the Securities of a
series or upon redemption 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 that series, the whole amount that then shall
have become due and payable on all 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
installments of interest at the rate expressed in the Securities of that
series; and, in addition thereto, such further amount as shall be sufficient
to cover the reasonable costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith 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 proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other
obligor upon the Securities of that series and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of
the Company or other obligor upon the Securities of that series, wherever
situated.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or
judicial proceedings affecting the Company, or its creditors or property,
the Trustee shall have power to intervene in such proceedings and take any
action therein that may be permitted by the court and shall (except as may
be otherwise provided by law) be entitled to file such proofs of claim and
other papers and documents as may be necessary or advisable in order to
have the claims of the Trustee and of the holders of Securities of such
series allowed for the entire amount due and payable by the Company under
the Indenture at the date of institution of such proceedings and for any
additional amount that may become due and payable by the Company after such
date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.06; and any
receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the holders of Securities of such series to make such
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to such Securityholders, to pay to
the Trustee any amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of any
of such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for payment to the
Trustee of any amounts due under Section 7.06, be for the ratable benefit of
the holders of the Securities of such series.
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 the 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.
Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities of that series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
SECTION 6.03 Application of Moneys Collected.
-------------------------------
Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the
following order, 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 Securities of that series, and notation
thereon the payment, if only partially paid, and upon surrender thereof if
fully paid:
FIRST: To the payment of costs and expenses of collection
and of all amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid
upon Securities of such series for principal, and premium, if any,
and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such
Securities for principal, and premium, if any, and interest,
respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns or to whomever may be lawfully
entitled to receive the same or as a court of competent jurisdiction
may direct.
SECTION 6.04 Limitation on Suits.
-------------------
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
suit, action or proceeding in equity or at law 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 (i) such holder previously shall have given to
the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event
of Default, as hereinbefore provided; (ii) the holders of not less than 25%
in aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as trustee hereunder; (iii)
such holder or holders shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby; and (iv) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity, shall have failed to
institute any such action, suit or proceeding and (v) during such 60 day
period, the holders of a majority in principal amount of the Securities of
that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of, and premium, if any, and interest on
such Security, as therein provided, on or after the respective due dates
expressed in such Security (or in the case of redemption, on the redemption
date), or to institute suit for the enforcement of any such payment on or
after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder and by accepting a Security
hereunder it is expressly understood, intended and covenanted by the taker
and holder of every Security of such series with every other such taker and
holder and the Trustee, that no one or more holders of Securities of such
series shall have any right in any manner whatsoever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights
of the holders of any other of 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 Securities of such
series. For the protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not
-----------------------------------------------------
Waiver.
------
(a) Except as otherwise provided in Section 2.07, all powers and
remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive
of any other powers and remedies available to the Trustee or the holders of
the Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of
any of the Securities to exercise any right or power accruing upon any Event
of 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 on
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
---------------------------
The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance
with Section 8.04, 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 such
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture or be unduly prejudicial to the rights
of holders of Securities of any other series at the time Outstanding
determined in accordance with Section 8.04. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
Officers of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability.
SECTION 6.07 Undertaking to Pay Costs.
------------------------
All parties to this Indenture agree, and each holder of any
Securities by such holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit instituted
by any Securityholder, or group of Securityholders, holding more than 10% in
aggregate principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Securityholder for the enforcement of the payment
of the principal of, or premium, if any, or interest on any Security of such
series, on or after the respective due dates expressed in such Security or
established pursuant to this Indenture.
SECTION 6.08 Waiver of Past Defaults.
-----------------------
The holders of not less than a majority in principal amount of the
Outstanding Securities of any series, determined in accordance with Section
8.04, may on behalf of the holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
----------------------------------------------
(a) The Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing of all Events of
Default with respect to the Securities of that series that may have occurred,
shall undertake to perform with respect to the Securities of such series such
duties and only such duties as are specifically set forth in this Indenture,
and no implied covenants shall be read into this Indenture against the
Trustee. In case an Event of Default with respect to the Securities of a
series has occurred (that has not been cured or waived), the Trustee shall
exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default with
respect to the Securities of a series and after the curing or
waiving of all such Events of Default with respect to that series
that may have occurred:
(a) the duties and obligations of the Trustee
shall with respect to the Securities of such series be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable with respect
to the Securities of such series except for the performance
of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(b) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Securities of
such series 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 that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee,
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a
majority in principal amount of the Securities of any 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 under
this Indenture with respect to the Securities of that series; and
(4) None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of
any of its duties or in the exercise of any of its rights or powers,
if there is reasonable ground for believing that the repayment of
such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk 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, consent, order, approval, bond,
security 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 Board Resolution or
an instrument signed in the name of the Company, by the Chief Executive
Officer, the President or any Vice President and by the Secretary or an
Assistant Secretary thereof (unless other evidence in respect thereof is
specifically prescribed herein);
(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted hereunder in good faith and in reliance thereon;
(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 Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the reasonable costs, expenses and
liabilities that may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of
an Event of Default with respect to a series of the Securities (that has not
been cured or waived) to exercise with respect to Securities of that series
such of the rights and powers vested in it by this Indenture, and to 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;
(e) The Trustee shall not be liable for any action taken or omitted
to be taken 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) 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, consent, order, approval, bond,
security, or other papers or documents, unless requested in writing so to do
by the holders of not less than a majority in principal amount of the
Outstanding Securities of the particular series affected thereby (determined
as provided in Section 8.04); 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, in the opinion
of the Trustee, not 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 examination
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 Responsible for Recitals or Issuance or
---------------------------------------------------
Securities.
-----------
(a) The recitals contained herein and in the Securities shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use or application
by the Company of any of the Securities or of the proceeds of such
Securities, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture or established
pursuant to Section 2.01, or for the use or application of any moneys
received by any Paying Agent other than the Trustee.
SECTION 7.04 May Hold Securities.
-------------------
The Trustee or any Paying Agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not Trustee, Paying
Agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
--------------------
Subject to the provisions of Section 11.05, 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 moneys received by it hereunder except
such as it may agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
------------------------------
(a) The Company covenants and agrees to pay to the Trustee, and the
Trustee shall be entitled to, such reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee
of an express trust), as the Company, and the Trustee may from time to time
agree in writing, for all services rendered by it in the execution of the
trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee, and, except as otherwise
expressly provided herein, 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 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. The Company also covenants to indemnify the Trustee
(and its officers, agents, directors and employees) for, and to hold it
harmless against, any loss, liability or expense incurred without negligence
or bad faith on the part of the Trustee and arising out of or in connection
with the acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim of liability in the
premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for reasonable
expenses, disbursements and advances shall constitute additional indebtedness
hereunder. Such additional indebtedness shall be secured by a lien prior to
that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Securities.
SECTION 7.07 Reliance on Officers' Certificate.
---------------------------------
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
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be 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 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 to be taken by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 7.09 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and
doing business under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a corporation or other
Person permitted to act as trustee by the Commission, authorized under such
laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial, or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section
7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) The Trustee or any successor hereafter appointed, may at any
time resign with respect to the Securities of one or more series by giving
written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Securityholders of
such series, as their names and addresses appear upon the Security Register.
Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee with respect to Securities of such series 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 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 with
respect to Securities of such series, or any Securityholder of that series
who has been a bona fide holder of a Security or Securities for at least six
months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or
Securities 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
Securityholder; or
(3) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or commence a voluntary
bankruptcy proceeding, or a receiver of the Trustee or of its
property shall be appointed or consented to, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (i) the Company may remove the Trustee with respect
to all Securities and 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 Trustee so removed and one copy to the
successor trustee, or (ii) unless the Trustee's duty to resign is stayed as
provided herein, any Securityholder who has been a bona fide holder of a
Security or Securities for at least six months may, on behalf of that holder
and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to such series by so notifying the Trustee and the
Company and may appoint a successor Trustee for such series with the consent
of the Company.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Securities of a series pursuant to any
of the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Securities of one or more series or all of such
series, and at any time there shall be only one Trustee with respect to the
Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
---------------------------------------
(a) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee; but,
on the request of the Company or the successor trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of
the retiring Trustee and shall duly assign, transfer and deliver to such
successor trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor trustee relates, (2) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust, that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be
responsible for any act or failure to act on the part of any other Trustee
hereunder; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to
the extent provided therein, such retiring Trustee shall with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates have no further responsibility for the exercise of rights and
powers or for the performance of the duties and obligations vested in the
Trustee under this Indenture, and each such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor trustee,
such retiring Trustee shall duly assign, transfer and deliver to such
successor trustee, to the extent contemplated by such supplemental indenture,
the property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such
successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession
of such trustee hereunder by mail, first class postage prepaid, to the
Securityholders, as their names and addresses appear upon the Security
Register. If the Company fails to transmit such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
--------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such
corporation shall be 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 any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 7.13 Preferential Collection of Claims Against the Company.
------------------------------------------------------
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
-------------------------------------
Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making
of any demand or request, the giving of any 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 majority or specified percentage of that series
have joined therein may be evidenced by any instrument or any number of
instruments of similar tenor executed by such holders of Securities of that
series in Person or by agent or proxy appointed in writing.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or
other action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of that
series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Securities of that series shall be computed as
of the record date; provided, however, that no such authorization, agreement
or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 8.02 Proof of Execution by Securityholders.
-------------------------------------
Subject to the provisions of Section 7.01, proof of the execution of
any instrument by a Securityholder (such proof will not require notarization)
or his agent or proxy and proof of the holding by any Person of any of the
Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security
Register of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
------------------------
Prior to the due presentment for registration of transfer of any
Security, 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 upon the books of the Company as the absolute owner of such
Security (whether or not such Security shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Security Registrar) for the purpose of receiving payment of or on account of
the principal of, premium, if any, and (subject to Section 2.03) 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.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
-----------------------------------------------
In determining whether the holders of the requisite aggregate
principal amount of Securities of a particular series have concurred in any
direction, consent of waiver under this Indenture, the Securities of that
series that are owned by the Company or any other obligor on the Securities
of that series or by any Person directly or indirectly controlling or
controlled by or under common control with the Company or any other obligor
on the Securities of that series shall be disregarded and deemed not to be
Outstanding for the purpose 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 that
the Trustee actually knows are so owned shall be so disregarded. The
Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not 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 case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
SECTION 8.05 Actions Binding on Future Securityholders.
-----------------------------------------
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 majority or percentage in aggregate principal amount of the Securities of
a particular series specified in this Indenture in connection with such
action, any holder of a Security of that series that is shown by the evidence
to be included in the Securities the holders of which have consented to such
action may, by filing written notice with the Trustee, 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 in exchange
therefor, on registration of transfer thereof or in place thereof,
irrespective of whether or not any notation in regard thereto is made upon
such Security. Any action taken by the holders of the majority or percentage
in aggregate principal amount of the Securities of a particular series
specified in this Indenture in connection with such action shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Securities of that series.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without the Consent of
----------------------------------------------
Securityholders.
---------------
In addition to any supplemental indenture otherwise authorized by
this Indenture, the Company 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 as then in effect),
without the consent of the Securityholders, for one or more of the following
purposes:
(1) to cure any ambiguity, defect, or inconsistency herein,
in the Securities of any series;
(2) to comply with Article Ten;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(4) to add to the covenants of the Company for the benefit
of the holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company;
(5) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or
purposes of issue, authentication, and delivery of Securities, as
herein set forth;
(6) to make any change that does not adversely affect the
rights of any Securityholder in any material respect;
(7) to provide for the issuance of and establish the form
and terms and conditions of the Securities of any series as provided
in Section 2.01, to establish the form of any certifications
required to be furnished pursuant to the terms of this Indenture or
any series of Securities, or to add to the rights of the holders of
any series of Securities;
(8) to add any additional Events of Default for the benefit
of the holders of all or any series of Securities (and if such
additional Events of Default are to be for the benefit of less than
all series of Securities, stating that such additional Events of
Default are expressly being included solely for the benefit of such
series);
(9) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in uncertificated form;
(10) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the holder of any
such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding;
(11) to secure the Securities; or
(12) 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 7.11.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures With Consent of Securityholders.
-------------------------------------------------------
With the consent (evidenced as provided in Section 8.01) of the
holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or
indentures at the time Outstanding, the Company, when authorized by Board
Resolutions, 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 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 or of modifying
in any manner not covered by Section 9.01 the rights of the holders of the
Securities of such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the holders of each
Security then Outstanding and affected thereby, (i) extend the fixed maturity
of any Securities of any series, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce
any premium payable upon the redemption thereof; (ii) reduce the amount of
principal of an Original Issue Discount Security or any other Security
payable upon acceleration of the maturity thereof pursuant to Section
6.01(b); (iii) change the currency in which any Security or any premium or
interest is payable; (iv) impair the right to institute suit for any payment
on or with respect to any Security; (v) reduce the percentage in principal
amount of outstanding Securities of any series, the consent of whose holders
is required for modification or amendment of this Indenture or for waiver of
compliance with certain provisions of this Indenture or for waiver of certain
defaults; (vi) reduce the requirements contained in this Indenture for quorum
or voting; or (vii) modify any of the above provisions.
It shall not be necessary for the consent of the Securityholders of
any series affected thereby under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
SECTION 9.03 Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Article X, this Indenture shall, with
respect to such series, be and be deemed to be modified and amended 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 thereby 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.
SECTION 9.04 Securities Affected by Supplemental Indentures.
-----------------------------------------------
Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Article X, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
-------------------------------------
Upon the request of the Company, accompanied by its Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto 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. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof; provided, however, that such Opinion of Counsel need not
be provided in connection with the execution of a supplemental indenture that
establishes the terms of a series of Securities pursuant to Section 2.01
hereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental indenture,
to the Securityholders of all series affected thereby as their names and
addresses appear upon the Security Register. Any failure of the Trustee to
mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 10.01 When the Company May Consolidate, Merge, Etc.
---------------------------------------------
The Company may not (a) merge with or into or consolidate with, or
(b) sell, assign, transfer, lease or convey all or substantially all of its
properties and assets to, any Person other than, with respect to this clause
(b), a direct or indirect wholly-owned subsidiary of the Company, and no
Person shall (x) merge with or into or consolidate with the Company, or (y)
except for any direct or indirect wholly-owned subsidiary of the Company,
sell, assign, transfer, lease or convey all or substantially all of its
properties and assets to the Company, unless:
(a) the Company is the surviving corporation or the Person formed by
or surviving such merger or consolidation or to which such sale, assignment,
transfer, lease or conveyance shall have been made (the "Successor"), if
other than the Company, shall expressly assume by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Securities and this
Indenture;
(b) immediately after giving effect to such transaction, no default
or Event of Default shall have occurred and be continuing; and
(c) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such supplemental indenture complies
with this Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the
obligor on the Securities with the same effect as if the Successor had been
named as the Company herein but, in the case of a sale, assignment, transfer,
lease or conveyance of all or substantially all of the properties and assets
of the Company, the predecessor Company will not be released from its
obligations to pay the principal of, premium, if any, and interest on the
Securities.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
---------------------------------------
If at any time: (a) the Company shall have delivered to the Trustee
for cancellation all Securities of a series theretofore authenticated (other
than any Securities that shall have been destroyed, lost or stolen and that
shall have been replaced or paid as provided in Section 2.07) and Securities
for whose payment money or Governmental Obligations have theretofore been
deposited in trust or segregated and held in trust by the Company (and
thereupon repaid to the Company or discharged from such trust, as provided in
Section 11.05); or (b) all such Securities of a particular 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 or cause to be deposited with the Trustee as trust
funds the entire amount in moneys or Governmental Obligations or a
combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all
Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal, and premium, if any, and interest due or
to become due to such date of maturity or date fixed for redemption, as the
case may be, and if the Company shall also pay or cause to be paid all other
sums payable hereunder with respect to such series by the Company then this
Indenture shall thereupon cease to be of further effect with respect to such
series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03 and 7.10, that shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.06 and 11.05, that shall survive to
such date and thereafter, and the Trustee, on demand of the Company and at
the cost and expense of the Company shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to
such series.
SECTION 11.02 Discharge of Obligations.
-------------------------
If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds money in
U.S. dollars sufficient or an amount of non-callable Governmental
Obligations, the principal of and interest on which when due, will be
sufficient or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent accountants expressed in a written
certification thereof delivered to the Trustee, to pay at maturity or upon
redemption all such Securities of that series not theretofore delivered to
the Trustee for cancellation, including principal, and premium, if any, and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company
under this Indenture with respect to such series shall cease to be of further
effect except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02,
4.03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities
shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
-------------------------------------
All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the holders of the
particular series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.
SECTION 11.04 Payment of Moneys Held by Paying Agents.
----------------------------------------
In connection with the satisfaction and discharge of this Indenture
all moneys or Governmental Obligations then held by any Paying Agent under
the provisions of this Indenture shall, upon demand of the Company, be paid
to the Trustee and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys or Governmental Obligations.
SECTION 11.05 Repayment to Company.
---------------------
Any moneys or Governmental Obligations deposited with any Paying
Agent or the Trustee, or then held by the Company, in trust for payment of
principal of or premium or interest on the Securities of a particular series
that are not applied but remain unclaimed by the holders of such Securities
for at least two years after the date upon which the principal of, and
premium, if any, or interest on such Securities shall have respectively
become due and payable, shall be repaid to the Company on May 31 of each year
or (if then held by the Company) shall be discharged from such trust; and
thereupon the Paying Agent and the Trustee shall be released from all further
liability with respect to such moneys or Governmental Obligations, and the
holder of any of the Securities entitled to receive such payment shall
thereafter, as an unsecured general creditor, look only to the Company for
the payment thereof.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No Recourse.
-----------
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 or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, 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 or
directors as such, of the Company or of any predecessor or 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 any of the Securities or implied
therefrom; and that any and all such personal liability of every name and
nature, 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 or director 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 of this Indenture
and the issuance of such Securities.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01 Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
----------
The Company may elect, at its option at any time, to have Section
13.02 or Section 13.03 applied to any Securities or any series of Securities,
as the case may be, designated pursuant to Section 2.01 as being defeasible
pursuant to such Sections 13.02 or 13.03, in accordance with any applicable
requirements provided pursuant to Section 2.01 and upon compliance with the
conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as
contemplated by Section 2.01 for such Securities.
SECTION 13.02 Defeasance and Discharge.
-------------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case
may be, the Company shall be deemed to have been discharged from its
obligations with respect to such Securities as provided in this Section on
and after the date the conditions set forth in Section 13.04 are satisfied
(hereinafter called "Defeasance"). For this purpose, such Defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), subject to the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of holders of such Securities to receive, solely
from the trust fund described in Section 13.04 and as more fully set forth in
such Section, payments in respect of the principal of and any premium and
interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 2.05, 2.06, 2.07,
4.01, 4.02 and 4.03, (3) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and (4) this Article. Subject to compliance with this
Article, the Company may exercise its option (if any) to have this Section
applied to any Securities notwithstanding the prior exercise of its option
(if any) to have Section 13.03 applied to such Securities.
SECTION 13.03 Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities or any series of Securities, as the case
may be, (1) the Company shall be released from its obligations under Article X,
Section 4.6, and any covenants provided pursuant to Sections 2.01(a)(16),
9.01(4) or 9.01(7) for the benefit of the holders of such Securities and (2)
the occurrence of any event specified in Sections 6.01(a)(3) (with respect to
any of Article X, Section 4.6, and any such covenants provided pursuant to
Sections 2.01(a)(16), 9.01(4) or 9.01(7)), 6.01(a)(7) and 6.01(a)(8) shall be
deemed not to be or result in an Event of Default, in each case with respect
to such Securities as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that, with respect to such Securities, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such specified Section (to the extent so specified in the
case of Section 6.01(a)(3)), whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of any reference
in any such Section to any other provision herein or in any other document,
but the remainder of this Indenture and such Securities shall be unaffected
thereby.
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance.
------------------------------------------------
The following shall be the conditions to the application of Section
13.02 or Section 13.03 to any Securities or any series of Securities, as the
case may be:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee which satisfies
the requirements contemplated by Section 7.09 and agrees to comply
with the provisions of this Article applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefits of the holders of such Securities, (A) money in an amount,
or (B) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and
any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities.
(2) In the event of an election to have Section 13.02 apply
to any Securities or any series of Securities, as the case may be,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B)
since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
holders of such Securities will not recognize gain or loss for
federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and
will be subject to federal income tax on the same amount, in the
same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply
to any Securities or any series of Securities, as the case may be,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the holders of such Securities will not
recognize gain or loss for federal income tax purposes as a result
of the deposit and Covenant Defeasance to be effected with respect
to such Securities and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would be
the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that it has been informed by the
relevant securities exchange(s) that neither such Securities nor any
other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to such
Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such
event specified in Sections 6.01(a)(5) and 6.01(a)(6), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until
after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any
indenture or other agreement or instrument for borrowed money,
pursuant to which in excess of $100,000,000 principal amount is then
outstanding, to which the Company is a party or by which it is
bound.
(7) Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act unless such
trust shall be registered under such Act or exempt from registration
thereunder.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 13.05 Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Miscellaneous Provisions.
----------------------------------
Subject to the provisions of Section 4.03(d), all money and
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 13.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.04 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Securities and this Indenture, to the payment,
either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the holders
of such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon request of
the Company any money or Government Obligations held by it as provided in
Section 13.04 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 13.06 Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Sections 13.02 or 13.03 shall be revived
and reinstated as though no deposit had occurred pursuant to this Article
with respect to such Securities, until such time as the Trustee or Paying
Agent is permitted to apply all money held in trust pursuant to Section 13.05
with respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium
or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
holders of such Securities to receive such payment from the money so held in
trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Effect on Successors and Assigns.
---------------------------------
All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 14.02 Actions by Successor.
---------------------
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
corresponding board, committee or officer of any Person that shall at the
time be the lawful sole successor of the Company.
SECTION 14.03 Notices.
-------
Except as otherwise expressly provided herein any notice or demand
that by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the holders of Securities to or on the Company
may be given or served by being deposited first class postage prepaid in a
post-office letterbox addressed (until another address is filed in writing by
the Company with the Trustee), as follows: Unitrin, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer, with copies of
any notice of an Event of Default to the attention of the General Counsel at
the same address. Any notice, election, request or demand by the Company or
any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee.
SECTION 14.04 Governing Law.
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This Indenture and each Security shall be deemed to be a contract
made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
SECTION 14.05 Treatment of Securities as Debt.
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It is intended that the Securities will be treated as indebtedness
and not as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this intention.
SECTION 14.06 Compliance Certificates and Opinions.
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(a) 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 such documents is specifically required by any provision of
this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant 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 14.07 Payments on Business Days.
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Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers' Certificate, or established in
one or more indentures supplemental to this Indenture, in any case where the
date of maturity of interest or principal of any Security or the date of
redemption of any Security shall not be a Business Day, then payment of
interest or principal, and premium, if any, may be made on the next
succeeding Business Day with the same force and effect as if made on the
nominal date of maturity or redemption, and no interest shall accrue for the
period after such nominal date.
SECTION 14.08 Conflict with Trust Indenture Act.
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If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 14.09 Counterparts.
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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 14.10 Separability.
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In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Securities, but this Indenture and such Securities shall
be construed as if such invalid or illegal or unenforceable provision had
never been contained herein or therein.
SECTION 14.11 Assignment.
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The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly
owned subsidiary of the Company, provided that, in the event of any such
assignment, the Company, will remain liable for all such obligations. Subject
to the foregoing, the Indenture is binding upon and inures to the benefit of
the parties thereto and their respective successors and assigns. This
Indenture may not otherwise be assigned by the parties thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
UNITRIN, INC.
as Issuer
By: _______________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
[---------------------],
as Trustee
By: _______________________________
Name:
Title:
Attest:
_________________________
Name:
Title: