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UNIFI, INC.
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INDENTURE
DATED AS OF FEBRUARY 5, 1998
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FIRST UNION NATIONAL BANK
AS TRUSTEE
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SENIOR NOTES
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TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture
dated as of February 5, 1998 between Unifi, Inc. and First Union
National Bank, as Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1)..................................................................6.09
(a)(2) .................................................................6.09
310(a)(3)..................................................................N.A.
(a)(4)..................................................................N.A.
310(b).................................................6.08; 6.10(a)(b) and (d)
310(c).....................................................................N.A.
311(a) and (b).............................................................6.13
311(c).....................................................................N.A.
312(a)............................................................4.01; 4.02(a)
312(b) and (c)..................................................4.02(b) and (c)
313(a)..................................................................4.04(a)
313(b)(1)..................................................................N.A.
313(b)(2)...............................................................4.04(a)
313(c)..................................................................4.04(a)
313(d)..................................................................4.04(d)
314(a)(1) and (2)...............................................4.03(a) and (b)
314(a)(3)...............................................................4.03(d)
314(a)(4)..................................................................3.05
314(b).....................................................................N.A.
314(c)(1) and (2).........................................................13.06
314(c)(3)..................................................................N.A.
314(d) ....................................................................N.A.
314(e)....................................................................13.06
314(f) ....................................................................N.A.
315(a)(c) and (d)..........................................................6.01
315(b) ....................................................................5.08
315(e) ....................................................................5.09
316(a)(1) ...........................................................5.01; 5.07
316(a)(2) ..............................................................Omitted
316(a) last sentence ......................................................7.04
316(b) ....................................................................5.04
317(a) ....................................................................5.02
317(b) .................................................................3.04(a)
318(a) ...................................................................13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS*
Page
Parties ....................................................................1
Recitals.....................................................................1
Authorization of Indenture...................................................1
Compliance with Legal Requirements...........................................1
Purpose of and Consideration for Indenture...................................1
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions................................................1
Affiliate....................................................................2
Attributable Debt............................................................2
Authenticating Agent.........................................................3
Bankruptcy Law...............................................................3
Board of Directors...........................................................3
Board Resolution.............................................................3
Business Day.................................................................3
Capital Lease Obligations....................................................3
Certificate..................................................................3
Commission...................................................................3
Company ....................................................................4
Company Common Stock.........................................................4
Consolidated Net Tangible Assets.............................................4
Custodian....................................................................4
Default ....................................................................4
Depositary...................................................................4
Event of Default.............................................................5
Funded Debt..................................................................5
Global Security..............................................................5
Indebtedness.................................................................5
Indenture....................................................................5
Intangible Assets............................................................5
Interest ....................................................................5
Interest Payment Date........................................................5
Liens ....................................................................6
Maturity Date................................................................6
Mortgage ....................................................................6
Nonpayment...................................................................6
Officers' Certificate........................................................6
Opinion of Counsel...........................................................6
Original Issue Date..........................................................6
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* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
i
Original Issue Discount Security.............................................6
outstanding..................................................................6
Person ....................................................................7
Predecessor Security.........................................................7
Principal Office of the Trustee..............................................7
Principal Property...........................................................7
Responsible Officer..........................................................8
Restricted Subsidiary........................................................8
Secured Funded Debt..........................................................8
Security ....................................................................8
Securities...................................................................8
Securityholder...............................................................8
Subsidiary...................................................................8
Trust Indenture Act of 1939..................................................9
Trustee ....................................................................9
Unrestricted Subsidiary......................................................9
U.S. Government Obligations..................................................9
Vice President..............................................................10
Yield to Maturity...........................................................10
ARTICLE TWO
SECURITIES
SECTION 2.01. Forms Generally...........................................10
SECTION 2.02. Form of Trustee's Certificate of
Authentication............................................11
SECTION 2.03. Amount Unlimited; Issuable in Series......................11
SECTION 2.04. Authentication and Dating.................................13
SECTION 2.05. Date and Denomination of Securities.......................15
SECTION 2.06. Execution of Securities...................................17
SECTION 2.07. Exchange and Registration of Transfer of
Securities................................................17
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen
Securities................................................18
SECTION 2.09. Temporary Securities......................................19
SECTION 2.10. Cancellation of Securities Paid, etc......................20
SECTION 2.11. Global Securities.........................................20
SECTION 2.12. CUSIP Numbers.............................................22
ARTICLE THREE
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest................22
SECTION 3.02. Offices for Notices and Payments, etc.....................22
SECTION 3.03. Appointments to Fill Vacancies in Trustee's
Office....................................................23
SECTION 3.04. Provision as to Paying Agent..............................23
SECTION 3.05. Certificate to Trustee....................................24
SECTION 3.06. Compliance with Consolidation Provisions..................25
SECTION 3.07. Calculation of Original Issue Discount....................25
SECTION 3.08. Existence.................................................25
ii
SECTION 3.09. Restrictions on Secured Funded Debt. .....................25
SECTION 3.10. Limitation on Sales and Leasebacks........................28
SECTION 3.11. Restrictions on Funded Debt of Restricted
Subsidiaries......................................29
SECTION 3.12. Waiver of Certain Covenants...............................29
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists....................................30
SECTION 4.02. Preservation and Disclosure of Lists......................30
SECTION 4.03. Reports by Company........................................32
SECTION 4.04. Reports by the Trustee....................................33
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
SECTION 5.01. Events of Default.........................................33
SECTION 5.02. Payment of Securities on Default; Suit
Therefor..................................................37
SECTION 5.03. Application of Moneys Collected by Trustee................39
SECTION 5.04. Proceedings by Securityholders............................40
SECTION 5.05. Proceedings by Trustee....................................41
SECTION 5.06. Remedies Cumulative and Continuing........................41
SECTION 5.07. Direction of Proceedings and Waiver of
Defaults by Majority of Securityholders...................42
SECTION 5.08. Notice of Defaults and Nonpayments........................43
SECTION 5.09. Undertaking to Pay Costs..................................43
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee....................43
SECTION 6.02. Reliance on Documents, Opinions, etc......................45
SECTION 6.03. No Responsibility for Recitals, etc.......................46
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May Own
Securities................................................47
SECTION 6.05. Moneys to be Held in Trust................................47
SECTION 6.06. Compensation and Expenses of Trustee......................47
SECTION 6.07. Officers' Certificate as Evidence.........................48
SECTION 6.08. Conflicting Interest of Trustee...........................48
SECTION 6.09. Eligibility of Trustee....................................48
SECTION 6.10. Resignation or Removal of Trustee.........................49
SECTION 6.11. Acceptance by Successor Trustee...........................51
SECTION 6.12. Succession by Merger, etc.................................52
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor .................................................52
SECTION 6.14. Authenticating Agents.....................................52
iii
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.................................54
SECTION 7.02. Proof of Execution by Securityholders.....................55
SECTION 7.03. Who Are Deemed Absolute Owners............................55
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding...............................................55
SECTION 7.05. Revocation of Consents; Future Holders Bound..............56
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings......................................56
SECTION 8.02. Call of Meetings by Trustee...............................57
SECTION 8.03. Call of Meetings by Company or
Securityholders...........................................57
SECTION 8.04. Qualifications for Voting.................................57
SECTION 8.05. Regulations...............................................58
SECTION 8.06. Voting....................................................58
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent
of Securityholders........................................59
SECTION 9.02. Supplemental Indentures with Consent of
Securityholders...........................................61
SECTION 9.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures................................63
SECTION 9.04. Notation on Securities....................................63
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee.........................63
ARTICLE TEN
CONSOLIDATION, MERGER, SALE AND CONVEYANCE
SECTION 10.01. Company May Consolidate, etc., on Certain
Terms.....................................................64
SECTION 10.02. Successor Corporation to be Substituted
for Company...............................................64
SECTION 10.03. Opinion of Counsel to be Given Trustee....................65
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ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture....................................65
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by Trustee................66
SECTION 11.03. Paying Agent to Repay Moneys Held.........................66
SECTION 11.04. Return of Unclaimed Moneys................................67
SECTION 11.05. Defeasance Upon Deposit of Moneys or U.S.
Government Obligations....................................67
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely Corporate
Obligations......................................69
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors................................................70
SECTION 13.02. Official Acts by Successor Corporation....................70
SECTION 13.03. Surrender of Company Powers...............................70
SECTION 13.04. Addresses for Notices, etc................................70
Section 13.05. Governing Law.............................................71
SECTION 13.06. Evidence of Compliance with Conditions
Precedent.................................................71
SECTION 13.07. Legal Holidays............................................71
SECTION 13.08. Trust Indenture Act to Control............................72
SECTION 13.09. Table of Contents, Headings, etc..........................72
SECTION 13.10. Execution in Counterparts.................................72
SECTION 13.11. Separability..............................................72
SECTION 13.12. Assignment................................................72
ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
SECTION 14.01. Applicability of Article..................................73
SECTION 14.02. Notice of Redemption; Selection of
Securities................................................73
SECTION 14.03. Payment of Securities Called for Redemption...............74
Testimonium.................................................................75
Signatures..................................................................75
Acknowledgments.............................................................76
v
THIS INDENTURE, dated as of ________________, between UNIFI,
INC., a New York corporation (hereinafter sometimes called the "Company"), and
FIRST UNION NATIONAL BANK, a national banking association, as trustee
(hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has
duly authorized the issue from time to time of its senior debt securities, notes
or other evidence of indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from time to time be
authorized by the Company, and, 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 acts and things necessary to make this Indenture
a valid agreement according to its terms, have been done and performed;
NOW, THEREFORE:
In consideration of the premises, and the purchase of the
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.01. All other terms used in
this Indenture which are defined in the Trust Indenture Act (as defined herein),
or which are by reference therein defined in the Securities Act of 1933, as
amended (the "Securities Act"), shall (except as herein otherwise expressly
provided or unless the context otherwise requires) have the meanings assigned to
such terms in said Trust Indenture Act and in the Securities Act as in force at
the date of this Indenture as originally executed. All accounting terms used
herein and not expressly defined shall have the meanings assigned to such terms
in accordance with generally accepted accounting principles, and the term
"generally accepted accounting principles" means such accounting principles as
are
1
generally accepted at the time of any computation. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.
"Affiliate" means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to vote
10% or more of the outstanding voting securities or other ownership interests of
the specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Attributable Debt" means as to any particular lease under
which either the Company or any Restricted Subsidiary is at the time liable as
lessee for a term of more than 12 months and, at any date as of which the amount
thereof is to be determined, the total net obligations of the lessee for rental
payments during the remaining term of the lease (including any period for which
such lease has been extended or may, at the option of the lessor, be extended)
discounted from the respective due dates thereof to such determination date at a
rate per annum equivalent to the greater of (a) the weighted-average Yield to
Maturity of the Outstanding Securities, such average being weighted by the
principal amount of the Outstanding Securities of each series or, in the case of
Original Issue Discount Securities, such amount to be the principal amount of
such outstanding Original Issue Discount Securities that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to this Indenture and (b) the interest rate
inherent in such lease (as determined in good faith by the Company), both to be
compounded semi-annually. The net total obligations of the lessee for rental
payments under any such lease for any such period shall be the aggregate amount
of the rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates and similar charges and contingent
rents (such as those based on sales or monetary inflation). If any lease is
terminable by the lessee upon the payment of a penalty and under the terms of
the lease the termination right is not exercisable until after the determination
date and the amount of such penalty discounted to the determination date as
provided above is less than the net amount of rentals payable after the time as
of which such termination could occur (the "termination time") discounted to the
determination date as provided above, then such discounted penalty amount shall
be used instead of such discounted amount of
2
net rentals payable after the termination time in calculating the Attributable
Debt for such lease. If any lease is terminable by the lessee upon the payment
of a penalty and such termination right is exercisable on the determination date
and the amount of the net rentals payable under such lease after the
determination date discounted to the determination date as provided above is
greater than the amount of such penalty, the "Attributable Debt" for such lease
as of such determination date shall be equal to the amount of such penalty.
"Authenticating Agent" shall mean any agent or agents of the
Trustee which at the time shall be appointed and acting pursuant to Section
6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
"Board of Directors" shall mean the Board of Directors or the
Executive Committee or any other duly authorized designated officers of the
Company.
"Board Resolution" shall mean a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or by a committee acting under authority of or
appointment by the Board of Directors and to be in full force and effect on the
date of such certification.
"Business Day" shall mean, with respect to any series of
Securities, any day other than a day on which federal or state banking
institutions in New York, New York, or Charlotte, North Carolina, are authorized
or obligated by law, executive order or regulation to close.
"Capital Lease Obligations" of either the Company or any
Restricted Subsidiary means the obligations of such Person to pay rent or other
amounts under any lease of (or other arrangement conveying the right to use)
real property, the term of which extends beyond 12 months, which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under generally accepted accounting principles (including
Statement No. 13 of Financial Accounting Standards Board) and, for the purposes
of this Indenture, the amount of such obligation shall be the capitalized amount
thereof, determined in accordance with generally accepted accounting principles
(including such Statement No. 13).
"Certificate" shall mean a certificate signed by the
Chief Executive Officer, President, Chief Financial Officer, any
Vice President or Treasurer of the Company.
"Commission" means the U.S. Securities and Exchange
Commission or any successor thereto.
3
"Company" shall mean Unifi, Inc., a New York corporation, and,
subject to the provisions of Article Ten, shall include its successors and
assigns.
"Company Common Stock" shall mean the Common Stock of the
Company or any other class of stock resulting from changes or reclassifications
of such Common Stock consisting solely of changes in par value, or from par
value to no par value, or from no par value to par value. Subject to the
anti-dilution provisions of any convertible Security, however, shares of Company
Common Stock issuable on conversion of a Security shall include only shares of
the class designated as Common Stock of the Company at the date of the
supplemental indenture, Board Resolution or other instrument authorizing such
Security or shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in respect of the
payment of dividends or the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company, provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of such classes resulting from all such reclas-
sifications.
"Consolidated Net Tangible Assets" means, at any date, the
total assets appearing on the most recent consolidated balance sheet of the
Company and its Restricted Subsidiaries as at the end of the fiscal quarter of
the Company ending not more than 135 days prior to such date, prepared in
accordance with generally accepted accounting principles, less (a) all current
liabilities (due within one year) as shown on such balance sheet, (b)
investments in and advances to Unrestricted Subsidiaries, and (c) Intangible
Assets and liabilities relating thereto.
"Custodian" shall mean any receiver, trustee, assignee,
liquidator, 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.
"Depositary" shall mean, 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
4
Trust Company, New York, New York, another clearing agency, or any successor
registered as a clearing agency pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.04 or 2.11.
"Event of Default" shall mean any event specified in Section
5.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Funded Debt" means (i) any indebtedness of the Company or a
Restricted Subsidiary maturing more than 12 months after the time of computation
thereof, (ii) guarantees of Funded Debt or of dividends of others (except
guarantees in connection with the sale or discount of accounts receivable, trade
acceptances and other paper arising in the ordinary course of business), (iii)
in the case of any Restricted Subsidiary, all preferred stock having mandatory
redemption provisions of such Restricted Subsidiary as reflected on such
Restricted Subsidiary's balance sheet prepared in accordance with U.S. generally
accepted accounting principles, and (iv) all Capital Lease Obligations.
"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.
"Indebtedness" means, at any date, without duplication, (i)
all obligations for borrowed money of the Company or a Restricted Subsidiary or
any other indebtedness of the Company or a Restricted Subsidiary, evidenced by
bonds, debentures, notes or other similar instruments, and (ii) Funded Debt.
"Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, or both, and shall include the form and terms of particular series
of Securities established as contemplated hereunder.
"Intangible Assets" means, at any date, the value (net of any
applicable reserves), as shown on or reflected in the most recent consolidated
balance sheet of the Company and its Restricted Subsidiaries as at the end of
the fiscal quarter of the Company ending not more than 135 days prior to such
date, prepared in accordance with generally accepted accounting principles, of:
(i) all trade names, trademarks, licenses, patents, copyrights, service marks,
goodwill and other like intangibles; (ii) organization and development costs;
(iii) deferred charges (other than prepaid items, such as insurance, taxes,
interest, commissions, rents, pensions, compensation and similar items and
intangible assets amortized), and (iv) unamortized debt discount and expense,
less unamortized premium.
"Interest" shall mean, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any
installment of interest on a Security of a particular series, shall mean the
date specified in such Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Securities of that series is due and
payable.
"Liens" means such pledges, Mortgages, security interests and
other liens on any Principal Property of the
5
Company or a Restricted Subsidiary which secure Secured Funded Debt.
"Maturity Date" shall mean the date on which any Securities
mature and on which the principal shall be due and payable together with all
accrued and unpaid interest thereon.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Nonpayment" shall have the meaning set forth in
Section 5.08.
"Officers' Certificate" shall mean a certificate signed by the
Chief Executive Officer, the President or any Vice President, by the Treasurer
or an Assistant Treasurer and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 13.06 if and to the extent
provided by the provisions of such Section.
"Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the Company, or may be
other counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.06 if and to the extent required by the
provisions of such Section.
"Original Issue Date" of any Security (or any portion thereof)
shall mean the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 5.01.
The term "outstanding" (except as otherwise provided in
Section 6.08), when used with reference to Securities, shall, subject to the
provisions of Section 7.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee or the Authenticating Agent under
this Indenture, except
(a) Securities theretofore canceled by the Trustee or
the Authenticating Agent or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent
6
(other than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own paying agent); provided
that, if such Securities, or portions thereof, are to be redeemed prior to
maturity thereof, notice of such redemption shall have been given as provided in
Article Fourteen or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities paid pursuant to Section 2.08 or in lieu of or
in substitution for which other Securities shall have been authenticated and
delivered pursuant to the terms of Section 2.08 unless proof satisfactory to the
Company and the Trustee is presented that any such Securities are held by bona
fide holders in due course.
In determining whether the holders of the requisite principal
amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.01.
"Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt and as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 2.08 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal Office of the Trustee", or other similar term,
shall mean the principal office of the Trustee, at which at any particular time
its corporate trust business shall be administered.
"Principal Property" means any manufacturing facility owned
and operated by the Company or any Restricted Subsidiary on or after the date
hereof, and any manufacturing equipment owned by the Company or any Restricted
Subsidiary on or after the date hereof in such manufacturing plant.
"Manufacturing equipment" means manufacturing equipment in such manufacturing
plant directly used in the production of the Company's products and parts and
components thereof, and shall not include office equipment, rolling stock and
other equipment not directly used in the production of the Company's products.
7
"Responsible Officer", when used with respect to the Trustee,
shall mean the chairman and vice chairman of the board of directors, the
chairman or vice chairman of the executive committee of the board of directors,
the president, any vice president, any assistant vice president, the cashier,
any assistant cashier, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any senior trust officer, any trust officer, the
controller, any assistant controller 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.
"Restricted Subsidiary" means each Subsidiary other
than Unrestricted Subsidiaries.
"Secured Funded Debt" means Funded Debt which is secured by
any pledge of, or Mortgage, security interest or other Lien on any (i) Principal
Property (whether owned on the date hereof or hereafter acquired or created),
(ii) shares of stock owned by the Company or a Subsidiary in a Restricted
Subsidiary or (iii) indebtedness of a Restricted Subsidiary.
"Security" or "Securities" shall have the meaning stated in
the first recital of this Indenture and more particularly means any security or
securities, as the case may be, authenticated and delivered under this
Indenture.
"Securityholder", "holder of Securities", or other similar
terms, shall mean any person in whose name at the time a particular Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of whose outstanding voting stock of which is
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, joint venture or similar entity, at least a majority of
whose outstanding partnership 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 of which such
Person or any of its Subsidiaries is a general partner, (iv) any limited
liability corporation of which such Person or any of its Subsidiaries is a
member. For the purposes of this definition, "voting stock" 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 equivalent) of such Person, other than shares,
8
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
"Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939 as in force at the date of execution of this Indenture, except as
provided in Section 9.03; provided, however, that if the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" shall mean the Person identified as "Trustee" in the
first paragraph hereof, and, subject to the provisions of Article Six hereof,
shall also include its successors and assigns as Trustee hereunder. The term
"Trustee" as used with respect to a particular series of the Securities shall
mean the trustee with respect to that series.
"Unrestricted Subsidiary" means any Subsidiary designated as
an Unrestricted Subsidiary from time to time by the Board of Directors of the
Company; provided, however, that the Board of Directors of the Company (i) shall
not designate as an Unrestricted Subsidiary any Subsidiary of the Company that
owns any Principal Property or any stock of a Restricted Subsidiary, (ii) shall
not continue the designation of any Subsidiary of the Company as an Unrestricted
Subsidiary at any time that such Subsidiary owns any Principal Property, and
(iii) shall not, nor shall it cause or permit any Restricted Subsidiary to,
transfer or otherwise dispose of any Principal Property to any Unrestricted
Subsidiary (unless such Unrestricted Subsidiary shall in connection therewith be
designated as a Restricted Subsidiary and any pledge, Mortgage, security
interest or other Lien arising in connection with any Indebtedness of such
Unrestricted Subsidiary so designated does not extend to such Principal Property
(unless the existence of such pledge, mortgage, security interest or other lien
would otherwise be permitted under this Indenture)).
"U.S. Government Obligations" shall mean 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, which, in either case
under clauses (i) or (ii), are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt, provided that (except as required by law) such custodian is not
authorized to make any
9
deduction from the amount payable to the holder of such deposito-
ry receipt from any amount received by the custodian in respect
of the U.S. Government Obligation or the specific payment of
interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the
Trustee, shall mean any vice president, whether or not designated by a number or
word or words added before or after the title "vice president," including any
Assistant, Executive or Senior Vice President.
"Yield to Maturity" shall mean the yield to maturity on a
series of Securities, calculated at the time of issuance of such series of
Securities, or if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the
form as shall be established by or pursuant to a Board Resolution and as set
forth in an Officers' Certificate of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Inden-
ture, and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
any law or with any rules made pursuant thereto or with any rules of any
securities exchange or all as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
In the event the Securities are issued in definitive form
pursuant to this Indenture, such Securities shall be typewritten, printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication on all Securities
shall be in substantially the following form:
10
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
First Union National Bank
as Trustee
By_________________________________
Authorized Signatory
SECTION 2.03. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture or otherwise by the Corporation
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 Securities 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 the series which may be authen-
ticated 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 the series
pursuant to Section 2.07, 2.08, 2.09, 9.04 or
14.03);
(3) the date or dates on which the principal of and
premium, if any, on the Securities of the series is
payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by
which such interest may be determined, the date or
dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall
be payable or the manner of determination of such
Interest Payment Dates and the record dates for the
determination of holders to whom interest is payable
on any such Interest Payment Dates;
11
(5) the place or places where the principal of, and
premium, if any, and any interest on Securities of
the series shall be payable;
(6) the right, if any, to extend the interest payment
periods and the duration of such extension;
(7) the price or prices at which, the period or periods
within 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, pursuant to
any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant
to any sinking fund or analogous provisions or at the
option of a Securityholder 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, purchased or repaid, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the
series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to
Section 5.01 or provable in bankruptcy pursuant to
Section 5.02;
(11) any Events of Default with respect to the Securities
of a particular series, if not set forth herein;
(12) the form of the Securities of the series including
the form of the Certificate of Authentication of such
series;
(13) any trustee, authenticating or paying agents, warrant
agents, transfer agents or registrars with respect to
the Securities of such series;
(14) whether the Securities of the series shall be issued
in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such
Global Security or Securities, and whether beneficial
owners of interests in any such Global Securities may
exchange such interests
12
for other Securities of such series in the manner
provided in Section 2.07, and the manner and the
circumstances under which and the place or places
where any such exchanges may occur if other than in
the manner provided in Section 2.07, and any other
terms of the series relating to the global nature of
the Global Securities of such series and the
exchange, registration or transfer thereof and the
payment of any principal thereof, or interest or
premium, if any, thereon;
(15) whether the Securities of any series shall be
convertible or non-convertible and, if convertible,
the terms thereof; and
(16) any other terms of the series (which terms shall not
be inconsistent with the provisions of this
Indenture).
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 such Board Resolution or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, 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.
SECTION 2.04. Authentication and Dating.
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, and the Trustee shall
thereupon authenticate and make available for delivery said Securities to or
upon the written order of the Company, signed by any two of its Chairman, Chief
Executive Officer, Chief Financial Officer, President, Vice Presidents or
Treasurer, without any further action by the Company hereunder. 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 6.01) shall be fully protected in
relying upon:
(1) a copy of any Board Resolution or Resolutions
relating thereto and, if applicable, an appropriate
record of any action taken pursuant to such
resolution, in each case certified by the Secretary
or an Assistant Secretary of the Company;
13
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and
terms of the Securities as required pursuant to
Sections 2.01 and 2.03, respectively; and
(4) an Opinion of Counsel which shall also state:
(a) that the form of such Securities has been
established by or pursuant to a Board
Resolution or by a supplemental indenture as
permitted by Section 2.01 in conformity with
the provisions of this Indenture;
(b) that the terms of such Securities have been
established by or pursuant to a Board
Resolution or by a supplemental indenture as
permitted by Section 2.03 in conformity with
the provisions of this Indenture;
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the
Company in the manner and subject to any
conditions specified in such Opinion of
Counsel, will constitute valid and legally
binding obligations of the Company;
(d) that all laws and requirements in respect of
the execution and delivery by the Company of
the Securities have been complied with in
all material respects and that
authentication and delivery of the
Securities by the Trustee will not violate
the terms of the Indenture; and
(e) such other matters as the Trustee may
reason- ably request.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or vice presidents shall determine
that such action would expose the Trustee to personal liability to existing
holders.
SECTION 2.05. Date and Denomination of Securities.
The Securities shall be issuable as registered Securities
without coupons and in such denominations as shall be specified as contemplated
by Section 2.03. In the absence of any such specification with respect to the
Securities of any series,
14
the Securities of such Series shall be issuable in the denominations of $1,000
and any multiple thereof. The Securities shall be numbered, lettered, or
otherwise distinguished in such manner or in accordance with such plans as the
officers of the Company executing the same may determine with the approval of
the Trustee as evidenced by the execution and authentication thereof.
Every Security shall be dated the date of its authentication,
shall bear interest, if any, from such date and shall be payable on such dates,
in each case, as contemplated by Section 2.03. 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 3.02.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for Security
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
15
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 or one or
more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Sections 2.01 and 2.03 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 Sections 2.01 and 2.03
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 Sections 2.01 and
2.03 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.
16
SECTION 2.06. Execution of Securities.
The Securities shall be signed in the name and on behalf of
the Company by the manual or facsimile signature of its Chief Executive Officer,
President or one of its Vice-Presidents and may be attested by the manual or
facsimile signature of its Secretary or one of its Assistant Secretaries, under
its corporate seal which may be affixed thereto or printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise, and which need not be
attested. Only such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, executed by the
Trustee or the Authenticating Agent, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee or the Authenticating Agent upon any Security executed by the Company
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.
In case any officer of the Company who shall have signed any
of the Securities shall cease to be such officer before the Securities so signed
shall have been authenticated and delivered by the Trustee or the Authenticating
Agent, or disposed of by the Company, such Securities nevertheless may be
authenticated and delivered or disposed of as though the person who signed such
Securities had not ceased to be such officer of the Company; and any Security
may be signed on behalf of the Company by such persons as, at the actual date of
the execution of such Security, shall be the proper officers of the Company,
although at the date of the execution of this Indenture any such person was not
such an officer.
SECTION 2.07. Exchange and Registration of Transfer of
Securities.
Subject to Section 2.03(12), Securities of any series may be
exchanged for a like aggregate principal amount of Securities of the same
series of other authorized denominations. Securities to be exchanged may be
surrendered at the principal corporate trust office of the Trustee or at any
office or agency to be maintained by the Company for such purpose as provided in
Section 3.02, and the Company or the Trustee shall execute and register and the
Trustee or the Authenticating Agent shall authenticate and make available for
delivery in exchange therefor the Security or Securities which the
Securityholder making the exchange shall be entitled to receive. Upon due
presentment for registration of transfer of any Security of any series at the
principal corporate trust office of the Trustee or at any office or agency of
the Company maintained for such purpose as provided in Section 3.02, the Company
or the Trustee shall execute and register and the Trustee or the Authenticating
Agent shall authenticate and make available for delivery in the name of the
17
transferee or transferees a new Security or Securities of the same series for a
like aggregate principal amount. Registration or registration of transfer of any
Security by the Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Security, shall be deemed to complete the
registration or registration of transfer of such Security.
The Company or the Trustee shall keep, at the Principal Office
of the Trustee, a register for each series of Securities issued hereunder in
which, subject to such reasonable regulations as it may prescribe, the Company
or the Trustee shall register all Securities and shall register the transfer of
all Securities as in this Article Two provided. Such register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time.
All Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by, the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or
registration of transfer of Securities, but the Company or the Trustee may
require payment of a sum sufficient to cover any tax, fee or other governmental
charge that may be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange
or register a transfer of (a) any Security for a period of 15 days next
preceding the date of selection of Securities of such series for redemption, or
(b) any Securities of any series selected, called or being called for redemption
in whole or in part, except in the case of any Securities of any series to be
redeemed in part, the portion thereof not so to be redeemed.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen
Securities.
In case any temporary or definitive Security shall become
mutilated or be destroyed, lost or stolen, the Company shall execute, and upon
its request the Trustee 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 satis-
18
faction of the destruction, loss or theft of such 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 connected
therewith. In case any Security which has matured or is about to mature or has
been called for redemption in full 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 may be required by them to
save each of them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and to the Trustee of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to
the provisions of this Section 2.08 by virtue of the fact that any such Security
is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder. All Securities shall be held and owned upon
the express condition that, to the extent permitted by applicable law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities and shall preclude 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 2.09. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute and the Trustee shall authenticate and make
available for delivery temporary Securities (typed, printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Securities but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company. Every such temporary Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. Without unreasonable delay, the Company will execute
and deliver to the Trustee or the Authenticating Agent definitive Securities
19
and thereupon any or all temporary Securities of such series may be surrendered
in exchange therefor, at the principal corporate trust office of the Trustee or
at any office or agency maintained by the Company for such purpose as provided
in Section 3.02, and the Trustee or the Authenticating Agent shall authenticate
and make available for delivery in exchange for such temporary Securities a like
aggregate principal amount of such definitive Securities. Such exchange shall be
made by the Company at its own expense and without any charge therefor except
that, in case of any such exchange involving a registration of transfer, the
Company may require payment of a sum sufficient to cover any tax, fee or other
governmental charge that may be imposed in relation thereto. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of the same series
authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Securities Paid, etc.
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 surrendered to the Trustee and promptly canceled
by it, or, if surrendered to the Trustee or any Authenticating Agent, shall be
promptly cancelled by it, and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. All
Securities cancelled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall deliver all cancelled Securities to the Company. If
the Company shall 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 surrendered to the Trustee for
cancellation.
SECTION 2.11. Global Securities.
(a) If the Company shall establish pursuant to Section 2.03
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 nominee of the Depositary, (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 the Depositary or to
another nominee of the Depositary or to a successor Depositary or to a nominee
of such successor Depositary."
20
(b) Notwithstanding the provisions of Section 2.07, the Global
Security of a series may be transferred, in whole but not in part and in the
manner provided in Section 2.07, only to the Depositary or 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 re-
ceives 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 2.07, the Trustee will
authenticate and make available for delivery 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 2.07, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and make available for delivery 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 cancelled 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.
So long as the system of registration described in this
Section 2.11 is in effect, (a) the records of the Depositary will be
determinative for all purposes and (b) neither the Company, the Trustee nor any
paying agent, Security registrar or transfer agent for such Securities will have
any responsibility or liability for (i) any aspect of the records relating to or
payments made on account of owners of beneficial interests in the Securities of
such series, (ii) maintaining, supervising or
21
reviewing any records relating to such beneficial interests, (iii) receipt of
notices, voting and requesting or directing the Trustee to take, or not to take,
or consenting to, certain actions hereunder, or (iv) the records and procedures
of the Depositary.
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 THREE
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 3.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid
the principal of, premium, if any, and interest on each of the Securities of
that series at the place, at the respective times and in the manner provided in
such Securities. Each installment of interest on the Securities of any series
may be paid by mailing checks for such interest payable to the order of the
holders of Securities entitled thereto as they appear on the registry books of
the Company.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remains outstanding, the
Company will maintain in New York, New York, an office or agency where the
Securities of each series may be presented for payment, an office or agency
where the Securities of that series may be presented for registration of
transfer and for exchange as in this Indenture provided and an office or agency
where notices and demands to or upon the Company in respect of the Securities of
that series or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Until otherwise designated from time to time by the
Company in a notice to the Trustee, or specified as contemplated by Section
2.03, any such office or agency for all of the above purposes
22
shall be the office or agency of the Trustee. In case the Company shall fail to
maintain any such office or agency in New York, New York, or shall fail to give
such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the principal
corporate trust office of the Trustee.
In addition to any such office or agency, the Company may from
time to time designate one or more offices or agencies outside New York, New
York, where the Securities may be presented for registration of transfer and for
exchange in the manner provided in this Indenture, and the Company may from time
to time rescind such designation, as the Company may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain any such office or
agency in New York, New York, for the purposes above mentioned. The Company will
give to the Trustee prompt written notice of any such designation or rescission
thereof.
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in
the office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee with respect to the Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provision of this Section 3.04,
(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, if any,
on the Securities of such series (whether
such sums have been paid to it by the
Company or by any other obligor on the
Securities of such series) in trust for the
benefit of the holders of the Securities of
such series; and
(2) that it will give the Trustee notice of any
failure by the Company (or by any other
obli- gor on the Securities of such series)
to make any payment of the principal of and
premium, if any, or interest, if any, on the
Securities of such series when the same
shall be due and payable.
23
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of and premium, if any, or interest,
if any, on the Securities of any series, set aside, segregate and hold in trust
for the benefit of the holders of the Securities of such series a sum sufficient
to pay such principal, premium or interest so becoming due and will notify the
Trustee of any failure to take such action and of any failure by the Company (or
by any other obligor under the Securities of such series) to make any payment of
the principal of and premium, if any, or interest, if any, on the Securities of
such series when the same shall become due and payable.
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Trustee or any paying
agent hereunder, as required by this Section 3.04, such sums to be held by the
Trustee upon the trusts herein contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
3.04 is subject to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before 120 days
after the end of each fiscal year in each year, so long as Securities of any
series are outstanding hereunder, a Certificate stating that in the course of
the performance by the signers of their duties as officers of the Company they
would normally have knowledge of the Company's compliance with all conditions
and covenants and of any default by the Company in the performance of any
covenants contained herein, stating whether or not they have knowledge of the
Company's compliance with all conditions and covenants and of any such default
and, if so, specifying each such default of which the signers have knowledge and
the nature thereof.
SECTION 3.06. Compliance with Consolidation
Provisions.
The Company will not, while any of the Securities remain
outstanding, consolidate with, or merge into, any other entity or convey,
transfer or lease its properties and assets substantially as an entirety to any
entity, and the Company will not permit any entity to consolidate with or merge
into the Company or convey all or transfer or lease its properties and assets
substantially as an entity to the Company unless the provisions of Article Ten
hereof are complied with.
SECTION 3.07. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of
each calendar year a written notice specifying the amount
24
of any original issue discount (including daily rates and accrual periods)
accrued on outstanding Securities as of the end of such year.
SECTION 3.08. Existence.
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 3.09. Restrictions on Secured Funded Debt.
The Company will not, nor will it permit any Restricted
Subsidiary to, incur, issue, assume, guarantee or create any Secured Funded
Debt, without effectively providing concurrently with the incurrence, issuance,
assumption, guaranty or creation of any such Secured Funded Debt that the
outstanding Securities (together with, if the Company shall so determine, any
other Indebtedness of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinated to the outstanding Securities)
shall be secured equally and ratably with (or prior to) such Secured Funded
Debt, unless after giving effect thereto, the sum of the aggregate amount of
all outstanding Secured Funded Debt of the Company and its Restricted
Subsidiaries together with all Attributable Debt in respect of sale and
leaseback transactions relating to a Principal Property (with the exception of
Attributable Debt which is excluded pursuant to clause (1) to (6) of Section
10.7), would not exceed 15% of Consolidated Net Tangible Assets; provided,
however, that this Section 3.09 shall not apply to, and there shall be excluded
from Secured Funded Debt in any computation under this Section 3.09, Funded Debt
secured by:
(1) Liens on property, shares of capital stock or indebtedness
of any corporation existing at the time such corporation becomes a
Subsidiary;
(2) Liens on property, shares of capital stock or indebtedness
existing at the time of acquisition thereof or incurred within 180 days
of the time of acquisition thereof (including, without limitation,
acquisition through merger or consolidation) by the Company or any
Restricted Subsidiary;
(3) Liens on property, shares of capital stock or indebtedness
hereafter acquired (or constructed) by the
25
Company or any Restricted Subsidiary and created prior to, at the time
of, or within 270 days after such acquisition (including, without
limitation, acquisition through merger or consolidation) (or the
completion of such construction or commencement of commercial operation
of such property, whichever is later) to secure or provide for the
payment of all or any part of the purchase price (or the construction
price) thereof;
(4) Liens in favor of the Company or any Restricted
Subsidiary;
(5) Liens in favor of the United States of America, any State
thereof or the District of Columbia, or any agency, department or other
instrumentality thereof, to secure partial, progress, advance or other
payments pursuant to any contract or provisions of any statute;
(6) Liens incurred or assumed in connection with an issuance
of revenue bonds the interest on which is exempt from Federal income
taxation pursuant to Section 103(b) of the Internal Revenue Code of
1986, as amended;
(7) Liens securing the performance of any contract or
undertaking not directly or indirectly in connection with the borrowing
of money, the obtaining of advances or credit or the securing of Funded
Debt, if made and continuing in the ordinary course of business;
(8) Liens incurred (no matter when created) in connection with
the Company's or a Restricted Subsidiary's engaging in leveraged or
single-investor lease transactions; provided, however, that the
instrument creating or evidencing any borrowings secured by such Lien
shall provide that such borrowings are payable solely out of the income
and proceeds of the property subject to such Lien and are not a general
obligation of the Company or such Restricted Subsidiary;
(9) Liens under workers' compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts or deposits to secure public
or statutory obligations of the Company or any Restricted Subsidiary,
or deposits of cash or obligations of the United States of America to
secure surety and appeal bonds to which the Company or any Restricted
Subsidiary is a party or in lieu of such bonds, or pledges or deposits
for similar purposes in the ordinary course of business, or Liens
imposed by law, such as laborers' or other employees', carriers',
warehousemen's, mechanics', materialmen's and vendors' Liens, and Liens
arising out of judgments or awards against the Company or any
Restricted Subsidiary with respect to which the Company or such
26
Restricted Subsidiary at the time shall be prosecuting an appeal or
proceedings for review and with respect to which it shall have secured
a stay of execution pending such appeal or proceedings for review, or
Liens for taxes not yet subject to penalties for nonpayment or the
amount or validity of which is being in good faith contested by
appropriate proceedings by the Company or any Restricted Subsidiaries,
as the case may be, or minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, rights of way,
sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions or Liens as to the use of
real properties, which Liens, exceptions, encumbrances, easements,
reservations, rights and restrictions do not, in the opinion of the
Company, in the aggregate materially detract from the value of said
properties or materially impair their use in the operation of the
business of the Company and its Restricted Subsidiaries;
(10) Liens incurred to finance all or any portion of the cost
of construction, alteration or repair of any Principal Property and
improvements thereto prior to or within 270 days after completion of
such construction, alteration or repair;
(11) Liens outstanding on the date of this Indenture;
or
(12) any extension, renewal, refunding or replacement (or
successive extensions, renewals, refundings or replacements), as a
whole or in part, of any Lien referred to in the foregoing clauses (1)
to (11), inclusive; provided, however, that (i) such extension,
renewal, refunding or replacement Lien shall be limited to all or a
part of the same property that secured the Lien extended, renewed,
refunded or replaced (plus improvements on such property) and (ii) the
Funded Debt secured by such Lien at such time is not increased.
SECTION 3.10. Limitation on Sales and Leasebacks.
The Company will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Company or any Restricted Subsidiary of any Principal Property of
the Company or any Restricted Subsidiary, which Principal Property has been or
is to be sold or transferred by the Company or such Restricted Subsidiary to
such Person (herein referred to as a "sale and leaseback transaction") unless,
after giving effect thereto, the aggregate amount of all Attributable Debt with
respect to all such sale and leaseback transactions plus all Secured Funded Debt
(with the exception of Funded Debt secured by liens which is
27
excluded pursuant to clauses (1) to (12) of Section 3.09) would not exceed 15%
of Consolidated Net Tangible Assets. This covenant shall not apply to, and there
shall be excluded from Attributable Debt in any computation under Section 3.09
or this Section 3.10, Attributable Debt with respect to, any sale and leaseback
transaction if:
(1) the Company or a Restricted Subsidiary is permitted to
create Funded Debt secured by a Lien pursuant to clauses (1) to (12) of
Section 3.09 on the Principal Property to be leased, in an amount equal
to the Attributable Debt with respect to such sale and leaseback
transaction, without equally and ratably securing the Outstanding
Securities;
(2) the Company or a Restricted Subsidiary, within 270 days
after the sale or transfer shall have been made by the Company or a
Restricted Subsidiary, shall apply an amount in cash equal to the
greater of (i) the net proceeds of the sale or transfer of the
Principal Property leased pursuant to such arrangement or (ii) the fair
market value of the Principal Property so leased at the time of
entering into such arrangement (as determined by the Chief Executive
Officer, the President, the Chief Financial Officer, the Treasurer or
the Controller of the Company) to the retirement of Secured Funded Debt
of the Company or any Restricted Subsidiary (other than Secured Funded
Debt owned by the Company or any Restricted Subsidiary); provided,
however, that no retirement referred to in this clause (2) may be
effected by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision of Secured Funded
Debt;
(3) the Company or a Restricted Subsidiary applies the net
proceeds of the sale or transfer of the Principal Property leased
pursuant to such transaction to investment in another Principal
Property within 270 days prior or subsequent to such sale or transfer;
provided, however, that this exception shall apply only if such
proceeds invested in such other Principal Property shall not exceed the
total acquisition, repair, alteration and construction cost of the
Company or any Restricted Subsidiary in such other Principal Property
less amounts secured by any purchase money or construction mortgages on
such Principal Property;
(4) the effective date of any such arrangement is within 270
days of the acquisition of the Principal Property (including, without
limitation, acquisition by merger or consolidation) or the completion
of construction and commencement of operation thereof, whichever is
later;
28
(5) the lease in such sale and leaseback transaction is for a
term, including renewals, of not more than three years; or
(6) such sale and leaseback transaction is entered into
between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries.
SECTION 3.11. Restrictions on Funded Debt of
Restricted Subsidiaries.
The Company shall not permit any Restricted Subsidiary to
incur, issue, assume, guarantee or create any Funded Debt, unless after giving
effect thereto, the sum of the aggregate amount of all outstanding Funded Debt
of the Restricted Subsidiaries would not exceed 15% of Consolidated Net Tangible
Assets; provided, however, that this Section 3.11 shall not apply to, and there
shall be excluded from, Funded Debt in any computation under this Section 3.11,
(i) Funded Debt secured by Liens which is excluded pursuant to clauses (1) to
(12) of Section 3.09, (ii) Funded Debt of any corporation existing at the time
such corporation becomes a Restricted Subsidiary and (iii) Indebtedness among
the Company and its Subsidiaries and Indebtedness between Subsidiaries;
provided, further, that this Section 3.11 shall not prohibit the incurrence of
Indebtedness in connection with any extension, renewal, refinancing, replacement
or refunding (including successive extensions, renewals, refinancings,
replacements and refundings), in whole or in part, of any Indebtedness of the
Restricted Subsidiaries (provided that the principal amount of such Indebtedness
being extended, renewed, refinanced, replaced or refunded is not increased) but
any such Indebtedness shall be included in the computation of Funded Debt under
this Section 3.11.
SECTION 3.12. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 3.09 to 3.11, inclusive,
with respect to the Securities of any series if before the time for such
compliance the holders of at least a majority in principal amount of the
outstanding securities of such series shall, by Act of such holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
29
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE.
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish or cause
to be furnished to the Trustee:
(a) on a monthly basis on each regular record date for
each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names
and addresses of the Securityholders of such se-
▇▇▇▇ of Securities as of such record date (and on
dates to be determined pursuant to Section 2.03
for non-interest bearing securities in each year);
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,
except that no such lists need be furnished so
long as the Trustee is in possession thereof by
reason of its acting as Security registrar for
such series.
SECTION 4.02. Preservation and Disclosure of Lists.
(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 each series of Securities (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2) received by it in the
capacity of Securities registrar (if so acting) hereunder. The Trustee may
destroy any list furnished to it as provided in Section 4.01 upon receipt of a
new list so furnished.
(b) In case three or more holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least six months preceding the date
of such application, and such application states that the applicants desire to
communicate with other holders of Securities of such series or with holders of
all Securities with respect to their rights under this Indenture or under such
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
30
within five business days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section
4.02, or
(2) inform such applicants as to the approximate number
of holders of such series or all Securities, as the
case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of
this Section 4.02, and as to the approximate cost of
mailing to such Securityholders the form of proxy or
other communication, if any, specified in such
application.
If the Trustee shall elect not to afford
such applicants access to such information, the
Trustee shall, upon the written request of such
appli- cants, mail to each Securityholder of such
series or all Securities, as the case may be, whose
name and address appear in the information preserved
at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02 a
copy of the form of proxy or other communication
which is specified in such request with reasonable
promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of
mailing, unless within five days after such tender,
the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the
material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of
the holders of Securities of such series or all
Securities, as the case may be, or would be in
violation of applicable law. Such written statement
shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the
objections specified in the written statement so
filed, shall enter an order refusing to sustain any
of such objections or if, after the entry of an order
sustaining one or more of such objections, the
Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained
have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all
such Securityholders with reasonable promptness after
the entry of such order and the renewal of such
31
tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting
their application.
(c) Each and every holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
holders of Securities in accordance with the provisions of subsection (b) of
this Section 4.02, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under said subsection (b).
SECTION 4.03. Reports by 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) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the 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) Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Certificates and Officers' Certificates).
32
(d) The Company covenants and agrees to transmit to the
Securityholders, in the manner and to the extent required by Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents, and
reports required to be filed by the Company in subsections (a) and (b) of this
Section 4.03 or pursuant to any other applicable provision under the U.S.
securities laws, including but not limited to Rule 144A(d)(4) under the U.S.
Securities Act of 1933, as amended.
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Securityholders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each May 15 following the date of this
Indenture deliver to Securityholders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange, if any, upon which the Securities are listed, with the Commission and
with the Company. The Company will promptly notify the Trustee when the
Securities are listed on any stock exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
SECTION 5.01. Events of Default.
In case one or more of the following Events of Default with
respect to Securities of any series or such other events as may be established
with respect to the Securities of that series as contemplated by Section 2.03
hereof shall have occurred and be continuing:
(a) in case of nonpayment of any installment of interest
upon any of the Securities of any series as and when
the same shall become due and payable, and such
nonpayment shall have continued for a period of 30
days; or
(b) in case of nonpayment of any of the principal of or
premium, if any, on any of the Securities of any
series as and when the same shall have become due and
payable, whether at maturity of the Securities of
that series or upon redemption or by declaration or
otherwise; or
(c) in case of default in the deposit of any sinking fund
or other payment required pursuant to the
33
terms of a Security of that Series as established by
or pursuant to a Board Resolution as permitted by
Section 2.03(8), when and as due by the terms of a
Security of that series; or
(d) in case of a default or defaults under any mortgage,
indenture or instrument under which there may be
issued or by which there may be secured or evidenced
by any Indebtedness (including this Indenture), in an
aggregate principal amount exceeding $15 million,
individually or in the aggregate, whether such
Indebtedness now exists or shall hereafter be
created, which default or defaults shall have
resulted in such Indebtedness, having been declared
due and payable prior to the date on which it would
otherwise have become due and payable, or the failure
to pay at maturity (including any applicable grace
period) any Indebtedness in an aggregate principal
amount exceeding $15 million individually or in the
aggregate whether such Indebtedness now exists or
shall hereafter be created, without in any such case
such Indebtedness having been discharged, or such
acceleration having been rescinded or annulled, or
there having been deposited in trust, a sum of money
sufficient to discharge in full such indebtedness,
within a period of 30 days after there shall have
been given, by registered mail, to the Company by the
Trustee or to the Company and the Trustee by the
holder or holders of at least 25% in aggregate
principal amount of the outstanding Securities of
such series a written notice specifying such default
and requiring the Company to cause such Indebtedness
to be discharged, cause to be deposited in trust a
sum sufficient to discharge in full such Indebtedness
or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject
to the provisions of Sections 5.08 and 6.02, the
Trustee shall not be deemed to have knowledge of such
default unless either (A) the Trustee shall have
actual knowledge of such default or (B) the Trustee
shall have received written notice thereof from the
Company, from the holder of any such Indebtedness or
from any trustee under any such mortgage, indenture
or other instrument; or
(e) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of
the Company in an involuntary case under any ap-
plicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trust-
ee, sequestrator (or similar official) of the
Company or for any substantial part of its proper-
ty, or ordering the winding-up or liquidation of
34
its affairs and such decree or order shall remain
unstayed and in effect for a period of 90 consecu-
tive days; or
(f) the Company shall commence a voluntary case under
any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an
involuntary case under any such law, or shall
consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar offi-
cial) of the Company or of any substantial part of
its property, or shall make any general assignment
for the benefit of creditors, or shall fail gener-
ally to pay its debts as they become due; or
(g) in case there shall have occurred a failure in the
performance, or breach, of any covenant or
warranty of the Company in this Indenture (other
than those set forth exclusively in terms of any
particular series of Securities established as
contemplated in this Indenture), and continuance
of such failure or breach for a period of 90 days
after there has been given, by registered or cer-
tified mail, to the Company by the Trustee or to
the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the
outstanding Securities a written notice specifying
such failure or breach and requiring it to be
remedied and stating that such notice is a "Notice
of Default" hereunder; or
(h) in case of any event which constitutes an "Event of
Default" under the terms governing Securities of that
series established as provided in Section 2.03;
then, and in each and every such case, unless the principal of all of the
Securities of such series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Securities of that series then outstanding hereunder, by notice in writing to
the Company (and to the Trustee if given by Securityholders), may declare the
entire principal (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all Securities of that series and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
35
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of such series (or of all the Securities, as
the case may be) and the principal of and premium, if any, on any and all
Securities of such series (or of all the Securities, as the case may be) which
shall have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such 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 such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the holders of a majority in aggregate principal amount of the Securities of
such series (or of all the Securities, as the case may be) then outstanding, by
written notice to the Company and to the Trustee, may waive all defaults with
respect to that series (or with respect to all Securities, as the case may be,
in such case, treated as a single class) and rescind and annul such declaration
and its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the Trustee and the holders of the Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the
Securities shall continue as though no such proceeding had been taken.
36
SECTION 5.02. Payment of Securities on Default; Suit
Therefor.
The Company covenants that:
(a) in case of nonpayment of any installment of interest
upon any of the Securities of any series as and when
the same shall become due and payable, and such
nonpayment shall have continued for a period of 30
days; or
(b) in case of nonpayment of any of the principal of or
premium, if any, on any of the Securities of any
series as and when the same shall have become due and
payable, whether at maturity of the Securities of
that series or upon redemption or by declaration or
otherwise; or
(c) in case of default in the deposit of any sinking fund
or other payment required pursuant to the terms of a
Security of that Series as established by or pursuant
to a Board Resolution as permitted by Section
2.03(8), when and as due by the terms of a Security
of that series;
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 amount that then
shall have become due and payable on all such Securities of that series 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 the overdue
installments of interest at the rate or Yield to Maturity (in the case of
Original Issue Discount Securities) borne by the Securities of that series; and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including a reasonable compensation to the
Trustee, its agents, attorneys and counsel, and any expenses or liabilities
incurred by the Trustee hereunder other than through its negligence or bad
faith.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any actions 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 any other
obligor on such Securities and collect in the manner provided by law out of the
property of the Company or any other obligor on such Securities wherever
situated the moneys adjudged or decreed to be payable.
37
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor on the Securities
of any series under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any other applicable law,
or in case a receiver or trustee shall have been appointed for the property of
the Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Securities of any
series, or to the creditors or property of the Company or such other obligor,
the Trustee, irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 5.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal and interest (or, if the
Securities of that series are Original Issue Discount Securities such portion of
the principal amount as may be specified in the terms of that series) owing and
unpaid in respect of the Securities of such series and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee, except as a result of their
negligence or bad faith) and of the Securityholders allowed in such judicial
proceedings relative to the Company or any other obligor on the Securities of
any series, or to the creditors or property of the Company or such other
obligor, unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities or any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses; and any receiver, assignee or trustee in bankruptcy
or reorganization is hereby authorized by each of the Securityholders to make
such payments to the Trustee, and, in the event that the Trustee shall consent
to the making of such payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable compensation to
the Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of their
negligence or bad faith.
Nothing herein contained shall be construed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrange-
38
ment, adjustment or composition affecting the Securities of any series or the
rights of any holder thereof or to authorize the Trustee to vote in respect of
the claim of any Securityholder in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities, or the production thereof on
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 be for the ratable benefit of
the holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party), the Trustee shall be held to represent all
the holders of the Securities, and it shall not be necessary to make any holders
of the Securities parties to any such proceedings.
Notwithstanding any provision in this Section 5.02, neither
the Trustee nor the Securityholders shall have the right to accelerate payment
of any series of the Securities or otherwise to declare such Securities due and
payable except as specifically set forth in Section 5.01.
SECTION 5.03. Application of Moneys Collected by
Trustee.
Any moneys collected by the Trustee shall be applied in the
following order, at the date or dates fixed by the Trustee for the distribution
of such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of
collection applicable to such series and reasonable compensation
to the Trustee, its agents, attorneys and counsel, and of all
other expenses and liabilities incurred, and all advances made,
by the Trustee except as a result of its negligence or bad faith;
Second: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (and premium, if any) and interest on
the Securities of such series, in respect of which or for the benefit of which
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due on such Securities for principal (and premium, if
any) and interest, respectively.
39
Third: To the Company or its successors or assigns,
or to whomsoever may be lawfully entitled to receive the same.
SECTION 5.04. Proceedings by Securityholders.
(a) No holder of any Security of any series shall have any
right by virtue of 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 that 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; (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; it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that no one or more
holders of Securities of any series shall have any right in any manner whatever
by virtue of or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other holder of 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 the
applicable series.
Notwithstanding any other provisions in this Indenture,
however, the right of any holder of any Security to receive payment of the
principal of (premium, if any) and interest, if any, on such Security, on or
after the same shall have become due and payable, and to institute suit for the
enforcement of any such payment, 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 such
Securities, or to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any
40
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Securities of 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, and to
institute suit therefor, as can be given either at law or in equity.
SECTION 5.05. Proceedings by Trustee.
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 by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, and
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as otherwise provided in Section 2.08, all powers and
remedies given by this Article Five 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 series, and 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 an acquiescence therein; and, subject to the provisions of
Section 5.04, every power and remedy given by this Article Five or by law to the
Trustee or to 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 5.07. Direction of Proceedings and Waiver of
Defaults by Majority of Securityholders.
The holders of a majority in aggregate principal amount of the
Securities of any or all series affected (voting as one class) at the time
outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however, that (subject to
the provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall deter-
41
mine that the action so directed would be unjustly prejudicial to the holders
not taking part in such direction or if the Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be taken
or if the Trustee in good faith by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees and/or Responsible
Officers shall determine that the action or proceedings so directed would
involve the Trustee in personal liability. Prior to any declaration accelerating
the maturity of any series of the Securities, or of all the Securities, as the
case may be, the holders of a majority in aggregate principal amount of the
Securities of that series at the time outstanding may on behalf of the holders
of all of the Securities of such series waive any past default or Event of
Default including any default established pursuant to Section 2.03, and its
consequences, except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Securities, (b) in respect of covenants or
provisions hereof which cannot be modified or amended without the consent of the
holder of each Security affected. Upon any such waiver, the default covered
thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Securities of such series shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon. Upon any such waiver the Company, the Trustee and the
holders of the Securities of that series (or of all Securities, as the case may
be) shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default hereunder shall have been waived as permitted by this
Section 5.07, such default or Event of Default shall for all purposes of the
Securities of that series (or of all Securities, as the case may be) and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 5.08. Notice of Defaults and Nonpayments.
The Trustee shall, within 90 days after the occurrence of a
default with respect to the Securities of any series, mail to all
Securityholders of that series, as the names and addresses of such holders
appear upon the Security register, notice of all defaults with respect to that
series or nonpayment of principal, premium, if any, or interest, when due on the
Securities of such series ("Nonpayments") known to the Trustee, unless such
defaults or Nonpayments shall have been cured before the giving of such notice
(the term "defaults" for the purpose of this Section 5.08 being hereby defined
to be the events specified in clauses (a) through (h) of Section 5.01, not
including periods of grace, if any, provided for therein.
42
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, 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 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders of any series, holding in the aggregate more than 10% in
principal amount of the Securities of that series outstanding, 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 against the
Company on or after the same shall have become due and payable.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to Securities of that series and after the curing or waiving of all
Events of Default which may have occurred, with respect to Securities of that
series, undertakes to perform such duties and only such duties as are specifi-
cally set forth in this Indenture. In case an Event of Default with respect to
the Securities of a series has occurred (which has not been cured or waived as
provided herein) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
43
(a) prior to the occurrence of an Event of Default with
respect to Securities of a series and after the
curing or waiving of all Events of Default with
respect to that series which may have occurred.
(1) the duties and obligations of the Trustee
with respect to Securities of a series shall
be determined solely by the express provi-
sions of this Indenture, and the Trustee
shall not be liable except for the perfor-
▇▇▇▇▇ of such duties and obligations with
respect to such series as are specifically
set forth in this Indenture, and no implied
covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and
the correctness of the opinions expressed
therein, upon any Certificates or Opinions
of Counsel furnished to the Trustee and
conforming to the requirements of this
Indenture; but, in the case of any such
Certificates or Opinions of Counsel which by
any provision hereof are specifically
required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the
same to determine whether or not they
conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
or Officers of the Trustee, unless it shall be proved
that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in
good faith, in accordance with the direction of
the Securityholders pursuant to Section 5.07,
relating to the time, method and place of conduct-
ing any proceeding for any remedy available to the
Trustee, or exercising any trust or power con-
ferred upon the Trustee, under this Indenture.
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
44
it under the terms of this Indenture or adequate indemnity against such risk is
not reasonably assured to it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(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, bond, note,
debenture or other paper or document believed by it
to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein spe-
cifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secre-
tary of the Company;
(c) the Trustee may consult with counsel of its selec-
tion and any advice or Opinion of Counsel shall be
full and complete authorization and protection in
respect of any action taken or suffered omitted by it
hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exer-
cise 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
costs, expenses and liabilities which may be in-
curred therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed
by it to be authorized or within the discretion or
rights or powers conferred upon it by this Inden-
ture; 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 or provided herein) to exercise with
respect to Secu- rities of that series such of the
rights and pow- ers vested in it by this Indenture,
and to use the same degree of care and skill in their
exercise
45
as a prudent person would exercise or use under the
circumstances in the conduct of his or her own
affairs;
(f) the Trustee shall not be bound to make any inves-
tigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
approval, bond, debenture, coupon or other paper
or document, unless requested in writing to do so
by the holders of not less than a majority in
principal amount of the outstanding Securities of
the series affected thereby; 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 secu-
rity afforded to it by the terms of this Inden-
ture, the Trustee may require reasonable indemnity
against such expense or liability as a condition
to so proceeding; 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 (including any
Authenticating Agent) or attorneys, and the Trustee
shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney
appointed by it with due care.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities (except in
the certificate of authentication of the Trustee or the Authenticating Agent)
shall be taken as the statements of the Company, and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee and
the Authenticating Agent shall not be accountable for the use or application by
the Company of any Securities or the proceeds of any Securities authenticated
and delivered by the Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents,
Transfer Agents or Registrar May Own Securities.
The Trustee or any Authenticating Agent or any paying agent or
any transfer agent or any 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
46
Trustee, Authenticating Agent, paying agent, transfer agent or Security
registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys
received by the Trustee or any paying agent shall, until used or applied as
herein provided, be held in trust for the purpose for which they were received,
but need not be segregated from other funds except to the extent required by
law. The Trustee and any paying agent shall be under no liability for interest
on any money received by it hereunder, except as otherwise agreed in writing
with the Company. So long as no Event of Default shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time upon the written order of the Company, signed by the Chief Executive
Officer, the Chief Financial Officer, the President or a Vice President or the
Treasurer or an Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation as shall
be agreed to in writing between the Company and the Trustee (which shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust), and 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 each of the Trustee or any predecessor
Trustee (and its officers, agents, directors and employees) for, and to hold it
harmless against, any and all losses, claims, liabilities or expenses, including
taxes (other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on the part of the Trustee or predecessor, and arising
out of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim of
liability in the premises. The obligations of the Company under this Section
6.06 to compensate and indemnify the Trustee and to pay or reimburse the Trustee
for 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(a)
47
or Section 5.01(b), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and 6.02,
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 omitting 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 or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
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 $50,000,000 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 6.09 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
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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 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any Trustee or Trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of such resignation to the Company and by
mailing notice thereof to the holders of the applicable series of Securities at
their addresses as they shall appear on the Security register. Upon receiving
such notice of resignation, the Company shall promptly appoint a successor
Trustee or Trustees with respect to the applicable series by written instrument,
in duplicate, executed under the authority of a Board Resolution, 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 with
respect to any series of Securities and have accepted appointment within 30 days
after the mailing of such notice of resignation to the affected Securityholders,
the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities of the applicable series for at least
six months may, subject to the provisions of Section 5.09, 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 of the following shall
occur --
(1) the Trustee shall fail to comply with the
provisions of subsection (a) of Section 6.08
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
6.09 and shall fail to resign after written
request therefor by the Company or by any
such Securityholder, or
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(3) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any
public officer shall take charge or control
of the Trustee or of its property or affairs
for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a
successor Trustee by written instrument, in duplicate, executed under the
authority of a Board Resolution, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor Trustee, or, subject to
the provisions of Section 5.09, any Securityholder who has been a bona fide
holder of a Security or Securities of the applicable series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. 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 and nominate a successor Trustee with
respect to the applicable series of Securities or all series, as the case may
be, which shall be deemed appointed as successor Trustee with respect to the
applicable series unless within 10 days after such nomination the Company
objects thereto, in which case the Trustee so removed or any Securityholder of
the applicable series, upon the terms and conditions and otherwise as in
subsection (a) of this Section 6.10 provided, may petition any court of
competent jurisdiction for an appointment of a successor Trustee with respect to
such series.
(d) Any resignation or removal of the Trustee and appointment
of a successor Trustee pursuant to any of the provisions of this Section 6.10
shall become effective upon acceptance of appointment by the successor Trustee
as provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor Trustee appointed as provided in Section 6.10
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring Trustee with respect to all or any
applicable series shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such
50
series of its predecessor hereunder, with like effect as if originally named as
Trustee herein; but, nevertheless, on the written request of the Company or of
the successor Trustee, the Trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of Section 6.06, execute and
deliver an instrument transferring to such successor Trustee all the rights and
powers of the Trustee so ceasing to act and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee thereunder. Upon request of any such successor Trustee, the Company
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and powers.
Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property
or funds held or collected by such Trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
If a successor Trustee is appointed 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 any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the Trustee
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-Trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
No successor Trustee shall accept appointment as provided in
this Section 6.11 unless at the time of such acceptance such successor Trustee
shall be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor Trustee as
provided in this Section 6.11, the Company shall mail notice of the succession
of such Trustee hereunder to the holders of Securities of any applicable series
at their addresses as they shall appear on the Security register. If the Company
fails to mail such notice within 10 days after the acceptance of appointment by
the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of the Company.
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SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee, and deliver such Securities so authenticated; and in case at that time
any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificates shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Trustee or authenticate
Securities of any series in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor.
The Trustee shall comply with Section 3.11(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 3.11(b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 3.11(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by
the Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Securities of any
series issued upon exchange or transfer thereof as fully to all intents and
purposes as though any such Authenticating Agent had been expressly authorized
to authenticate and deliver Securities of such series; provided, that the
Trustee shall have no liability to the Company for any acts or omissions of the
Authenticating Agent with respect to the authentication and delivery of
Securities of any series. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the
52
laws of the United States or of any state or territory thereof or of the
District of Columbia authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of at least $5,000,000 and being 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 the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provi-
sions of this Section, it shall resign immediately in the manner and with the
effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.14 without the execution or filing of any paper or
any further act on the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect
to one or more or all series of Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to one or more or
all series of Securities by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section 6.14, the
Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent with respect to the applicable series eligible
under this Section 6.14, shall give written notice of such appointment to the
Company and shall mail notice of such appointment to all holders of the
applicable series of Securities as the names and addresses of such holders
appear on the Security register. Any successor Authenticating Agent with respect
to all or any series upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities with respect to such
series of its predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from
time to time reasonable compensation for its services. Any Authenticating Agent
shall have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
53
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of
a specified percentage in aggregate principal amount of the Securities of any or
all 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
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders.
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 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05,
proof of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
54
satisfactory to the Trustee. The ownership of Securities shall be proved by the
Security register or by a certificate of the Security registrar. The Trustee may
require such additional proof of any matter referred to in this Section as it
shall deem necessary.
The record of any Securityholders' meeting shall be proved in
the manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any
Security, the Company, the Trustee, any Authenticating Agent, any paying agent,
any transfer agent and any Security registrar may deem the Person in whose name
such Security shall be registered upon the Security register (including a
Depositary in the case of a Global Security) to be, and may treat him as, the
absolute owner of such Security (whether or not such Security shall be overdue)
for the purpose of receiving payment of or on account of the principal of,
premium, if any, and interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any Authenticating Agent nor any paying
agent nor any transfer agent nor any Security registrar shall be affected by any
notice to the contrary. All such payments so made to any holder for the time
being or upon his order shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Security.
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities shall be disregarded and deemed
not to be outstanding for the purpose of any such determination; provided that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Securities which the
Trustee actually knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 7.04 if the pledgee shall establish to the satisfaction
of the Trustee the pledgee's right to vote such Securities and that the pledgee
is not the Company or any such other obligor or person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In the case of a dispute as to such right,
any decision by the
55
Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 7.05. Revocation of Consents; Future Holders
Bound.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 7.01, of the taking of any action by the holders
of the percentage in aggregate principal amount of the Securities specified in
this Indenture in connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution therefor) the
serial number of which 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 at its principal office and upon proof of
holding as provided in Section 7.02, revoke such action so far as concerns such
Security (or so far as concerns the principal amount represented by any
exchanged or substituted 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 or substitution therefor, irrespective of whether or not any
nota- tion in regard thereto is made upon such Security or any Security issued
in exchange or substitution therefor.
ARTICLE EIGHT
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be
called at any time and from time to time pursuant to the provisions of this
Article Eight for any of the following purposes:
(a) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to
consent to the waiving of any default hereunder and
its consequences, or to take any other action
authorized to be taken by Securityholders pursuant to
any of the provisions of Article Five;
(b) to remove the Trustee and nominate a successor
Trustee pursuant to the provisions of Article Six;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the
provisions of Section 9.02; or
56
(d) to take any other action authorized to be taken by or
on behalf of the holders of any specified aggregate
principal amount of such Securities under any other
provision of this Indenture or under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders
of any or all series to take any action specified in Section 8.01, to be held at
such time and at such place in New York, New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders of any or all series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to holders of
Securities of each series affected at their addresses as they shall appear on
the Security register of each series affected. Such notice shall be mailed not
less than 20 nor more than 180 days prior to the date fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or
Securityholders.
In case at any time the Company pursuant to a resolution of
the Board of Directors, or the holders of at least 10% in aggregate principal
amount of the Securities of any or all series, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of
Securityholders of any or all series, as the case may be, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
20 days after receipt of such request, then the Company or such Securityholders
may determine the time and the place in said Borough of Manhattan for such
meeting and may call such meeting to take any action authorized in Section 8.01,
by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a
person shall (a) be a holder of one or more Securities with respect to which the
meeting is being held or (b) a person appointed by an instrument in writing as
proxy by a holder of one or more such Securities. The only persons who shall be
entitled to be present or to speak at any meeting of Securityholders shall be
the persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
57
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Securityholders, in regard to proof of the holding of Securities and
of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.04 and unless otherwise
provided in an indenture supplemental hereto, at any meeting each holder of
Securities with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $25 principal amount (in the case of
Original Issue Discount Securities, such principal amount to be determined as
provided in the definition "outstanding") of Securities held or represented by
him or her; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not outstanding and ruled by
the chairman of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities held by the
Chairman or instruments in writing as aforesaid duly designating the Chairman as
the person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 8.02 or 8.03
may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of
holders of Securities with respect to which such meeting is being held shall be
by written ballots on which shall be subscribed the signatures of such holders
or of their representatives by proxy and the serial number or numbers of the
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
58
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that the notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Securities voting in favor of or against
any resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent
of Securityholders.
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:
(a) to evidence the succession of another corporation to
the Company, or successive successions, and the
assumption by the successor corporation of the
covenants, agreements and obligations of the Company
pursuant to the terms of this Indenture;
(b) to add to the covenants of the Company such fur-
ther covenants, restrictions or conditions for the
protection 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 for the benefit of such series) as the
Company and the Trustee shall consider to be for
the protection of the holders of such Securities,
and to make the occurrence, or the occurrence and
continuance, of a default in any of such
additional covenants, restrictions or conditions a
default or an Event of Default permitting the
enforcement of all or any of the several remedies
provided in this Indenture as herein set forth;
provided, however, that in respect of any such
additional Covenant, restriction or condition, such
59
additional covenant, restriction or condition such
supplemental indenture may provide for a particular
period of grace after default (which period may be
shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate
enforcement upon such default or may limit the
remedies available to the Trustee upon such default;
(c) to provide for the issuance under this Indenture of
Securities in coupon form (including Securities
registrable as to principal only) and to provide for
exchangeability of such Securities with the
Securities issued hereunder in fully registered form
and to make all appropriate changes for such purpose;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supple-
mental indenture which may be defective or incon-
sistent with any other provision contained herein
or in any supplemental indenture, or to make such
other provisions in regard to matters or questions
arising under this Indenture; provided that any
such action shall not adversely affect the inter-
ests of the holders of the Securities;
(e) to add to, delete from, or revise the terms of
Securities of any series as permitted by Section
2.01 and 2.03, including, without limitation, any
terms relating to the issuance, exchange, regis-
tration or transfer of Securities issued in whole
or in part in the form of one or more global Secu-
rities and the payment of any principal thereof,
or interest or premium, if any, thereon;
(f) 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 6.11;
(g) to provide for uncertificated Securities in
addition to or in place of certificated
Securities;
(h) to make any change that does not adversely affect the
rights of any Securityholder in any material respect;
or
60
(i) to provide for the issuance of and establish the form
and terms and conditions of the Securities of any
series, 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.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer and assignment of any property thereunder, but
the Trustee shall not be obligated to, but may in its discretion, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 9.01 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 7.01) of
the holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding of all series affected by such supplemental
indenture (each voting as a separate class), 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 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 the rights of the
holders of the Securities of each series so affected; 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 Security of any series, or reduce the rate or extend the time of payment of
interest thereon, or (ii) reduce the principal amount thereof or any premium
thereon, or reduce any amount payable on redemption thereof, or (iii) make the
principal thereof or any interest or premium thereon payable in any place or any
coin or currency other than that provided in the Securities, or (iv) reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to Section
5.01 or the amount thereof provable in bankruptcy pursuant to Section 5.02, or
(v) impair or affect the right of any Securityholder to institute suit for
payment thereof or the right of repayment, if any, at the option of the holder,
61
or (vi) adversely affect any right of Security holders to convert Securities, or
(vii) reduce the aforesaid percentage of Securities the holders of which are
required to consent to any such supplemental indenture, or any modification
hereof or amendment hereto, or the consent of the holders of which is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their covenants) provided for in this Indenture,
or (viii) modify any of the provisions of this Section, Section 5.04 or Section
5.07, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Securityholders of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture or the Securityholders of any other series.
Upon the request of the Company accompanied by a copy of a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders 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 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.
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, prepared
by the Company, 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.
It shall not be necessary for the consent of the
Securityholders under this Section 9.02 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. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions
of this Article Nine shall comply with the Trust Indenture Act (to the extent
applicable), as then in effect. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Nine, this Indenture shall be and be
deemed to be modified and
62
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 each 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. Notation on Securities.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture affecting such series pursuant to the
provisions of this Article Nine may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Securities of any series then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article Nine.
ARTICLE TEN
CONSOLIDATION, MERGER, SALE AND CONVEYANCE
SECTION 10.01. Company May Consolidate, etc., on Cer-
tain Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Company with or into
any other entity (whether or not affiliated with the Company, as the case may
be), or successive consolidations or mergers in which the Company, as the case
may be, or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer, lease or other disposition of the
property of the Company, as the case may be, or its successor or successors as
an entirety, or substantially as an entirety, to any other entity (whether or
not affiliated with the Company, as the case may be, or its successor or
successors)
63
authorized to acquire and operate the same so long as any successor entity or
purchaser shall be a corporation, partnership, trust or other entity organized
and validly existing under the laws of the United States of America, any State
or the District of Columbia; provided, however, the Company hereby covenants and
agrees that, upon any such consolidation or merger, or upon any sale,
conveyance, transfer, lease or other disposition of all or substantially all of
the property of the Company, the due and punctual payment, in the case of the
Company, of the principal of, premium, if any, and interest on all of the
Securities of all series in accordance with the terms of each series, according
to their tenor and the due and punctual performance and observance of all the
covenants and conditions of this Indenture with respect to each series or
established with respect to such series pursuant to Section 2.03 to be kept or
performed by the Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture Act, as then in
effect) satisfactory in form to the Trustee executed and delivered to the
Trustee by the entity formed by such consolidation, or into which the Company,
as the case may be, shall have been merged, or by the entity which shall have
acquired such property, and that immediately after giving effect to such
transaction, no Event of Default or event which, after notice or lapse of time
or both, would become an Event of Default hereunder would exist and be
continuing.
SECTION 10.02. Successor Corporation to be Substituted
for Company.
In case of any such consolidation or merger, or upon any sale,
conveyance, transfer or other disposition of all or substantially all of the
property of the Company and upon the assumption by the successor entity, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and
premium, if any, and interest on all of the Securities and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture or the Declaration to be performed or observed by the Company, such
successor entity shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and
the Company thereupon shall be relieved of any further liability or obligation
hereunder or upon the Securities. Such successor entity thereupon may cause to
be signed, and may issue either in its own name or in the name of the Company,
any or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee or the Authenticating
Agent; and, upon the order of such successor entity instead of the Company and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee or the Authenticating Agent shall authenticate and
deliver any Securities which previously shall have been signed and delivered by
the officers of the Company to the Trustee or the Authenticating Agent for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee or the Authenticating
Agent for that purpose. All the Securities
64
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Indentures had been issued at
the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and
6.02, shall receive an officer's certificate and, at the Trustee's option, an
Opinion of Counsel, as conclusive evidence that any consolidation, merger,
conveyance or transfer, and any assumption, permitted or required by the terms
of this Article Ten complies with the provisions of this Article Ten.
ARTICLE ELEVEN
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than any Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.08) and not theretofore canceled, or
(b) all the Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds
sufficient to pay at maturity or upon redemption all of the Securities (other
than any Securities which shall have been destroyed, lost or stolen and which
shall have been replaced or paid as provided in Section 2.08) not theretofore
canceled or 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
redemption date, as the case may be, but excluding, however, the amount of any
moneys for the payment of principal of, and premium, if any, or interest on the
Securities (1) theretofore repaid to the Company in accordance with the
provisions of Section 11.04, or (2) paid to any state or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in either
case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect except that the provisions of Sections 2.05, 2.07, 2.08, 3.01, 3.02,
3.04, 6.06, 6.10 and 11.04 hereof shall survive until such Securities shall
mature and be paid. Thereafter, Sections 6.10 and 11.04 shall survive, and the
Trustee, on demand of the Company accompanied by any Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfac-
65
tion of and discharging this Indenture, the Company, however, hereby agreeing to
reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred by the Trustee in connection with this Indenture or the
Securities.
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys and
U.S. Government Obligations deposited with the Trustee pursuant to Sections
11.01 or 11.05 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Company if acting as its own
paying agent), to the holders of the particular Securities for the payment of
which such moneys or U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.05 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.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture, all
moneys then held by any paying agent of the Securities (other than the Trustee)
shall, upon demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying
agent for payment of the principal of, and premium, if any, or interest on
Securities and not applied but remaining unclaimed by the holders of Securities
for three years after the date upon which the principal of, and premium, if any,
or interest on such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such paying agent on
written demand; and the holder of any of the Securities shall thereafter look
only to the Company for any payment which such holder may be entitled to
collect, and all liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
66
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations.
The Company shall be deemed to have been Discharged (as
defined below) from its respective obligations with respect to any series of
Securities on the 91st day after the applicable conditions set forth below have
been satisfied with respect to any series of Securities at any time after the
applicable conditions set forth below have been satisfied:
(1) The Company shall have deposited or caused to be
deposited irrevocably with the Trustee or the
Defeasance Agent (as defined below) as trust funds in
trust, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of
the Securities of such series (i) money in an amount,
or (ii) U.S. Government Obligations which through the
payment of interest and principal 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 (iii) a combination
of (i) and (ii), sufficient, in the opinion (with
respect to (ii) and (iii)) of a nationally recognized
firm of independent public accountants expressed in
a written certification thereof delivered to the
Trustee and the Defeasance Agent, if any, to pay and
discharge each installment of principal (including
any mandatory sinking fund payments) of, and
interest and premium, if any, on, the outstanding
Securities of such series on the dates such
installments of principal, interest or premium are
due;
(2) such deposit will not cause the Trustee to have any
conflicting interest with respect to other securities
of the Company;
(3) if the Securities of such series are then listed
on any national securities exchange, the Company
shall have delivered to the Trustee and the ▇▇▇▇▇-
▇▇▇▇▇ Agent, if any, an Opinion of Counsel to the
effect that the exercise of the option under this
Section 11.05 would not cause such Securities to
be delisted from such exchange;
(4) no Event of Default or event which with notice or
lapse of time would become an Event of Default with
respect to the Securities of such series shall have
occurred and be continuing on the date of such
deposit or on such later date specified in this
Indenture in the case of certain events in
bankruptcy, insolvency or reorganization of the
Company;
(5) such defeasance will not result in a breach or
violation of, or constitute a default under, the
67
Indenture or any other agreement or instrument to
which the Company is a party or by which it is
bound; and
(6) the Company shall have delivered to the Trustee and
the Defeasance Agent, if any, an Opinion of Counsel
to the effect that holders of the Securities of such
series will not recognize income, gain or loss for
United States federal income tax purposes as a result
of the exercise of the option under this Section
11.05 and will be subject to United States federal
income tax on the same amount and in the same manner
and at the same times as would have been the case if
such option had not been exercised, and, in the case
of the Securities of such series being Discharged,
such opinion shall be accompanied by a private letter
ruling to that effect received from the United States
Internal Revenue Service, a revenue ruling pertaining
to a comparable form of transaction to that effect
published by the United States Internal Revenue
Service, or otherwise a change in applicable Federal
income tax law occurring after the date of the
Indenture.
"Discharged" means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by, and obligations
under, the Securities of such series and to have satisfied all the obligations
under this Indenture relating to the Securities of such series (and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
the same), except (A) the rights of holders of Securities of such series to
receive, from the trust fund described in clause (1) above, payment of the
principal of and the interest and premium, if any, on such Securities when such
payments are due; (B) the Company's obligations with respect to such Securities
under Sections 2.07, 2.08, 5.02 and 11.04; and (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution which
is eligible to act as Trustee hereunder and which assumes all of the obligations
of the Trustee necessary to enable the Trustee to act hereunder. In the event
such a Defeasance Agent is appointed pursuant to this section, the following
conditions shall apply:
1. The Trustee shall have approval rights over the
document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent's rights
and responsibilities;
2. The Defeasance Agent shall provide verification to
the Trustee acknowledging receipt of sufficient
68
money and/or U. S. Government Obligations to meet
the applicable conditions set forth in this Sec-
tion 11.05; and
3. The Trustee shall determine whether the Company shall
be deemed to have been Discharged from its respective
obligations with respect to any series of Securities.
If the amount of money and U.S. government obligations due on
deposit is insufficient to pay amounts due on the Securities at the time of
acceleration resulting from an Event of Default, the Company shall remain liable
in respect of such amounts.
ARTICLE TWELVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 12.01. Indenture and Securities Solely Corpo-
rate Obligations.
No recourse for the payment of the principal of or premium, if
any, or interest on any Security, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture, or
in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of any successor
corporation of the Company, either directly or through the Company or any
successor corporation of the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS.
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in
this Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee
69
or officer of any corporation that shall at the time be the
lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by appropriate
authority of its Board of Directors and delivered to the Trustee may surrender
any of the powers reserved to the Company, and thereupon such power so
surrendered shall terminate both as to the Company, as the case may be, and as
to any successor corporation.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders
of Securities on the Company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee for the purpose)
to the Company, Unifi, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer. Any notice, direction,
request or demand by 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 office of the Trustee, addressed to the Trustee, First Union
National Bank, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Department.
Section 13.05. Governing Law.
This Indenture and each Security shall be deemed to be a
contract made under the laws of the State of New York, and for all purposes
shall be governed by and construed in accordance with the laws of said State,
without regard to conflicts of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions
Precedent.
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 in the
opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion of the Company provided for in
this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this
70
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, such person has made such examination or
investigation as is necessary to enable such person 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 13.07. Legal Holidays.
In any case where the date of payment of interest on or
principal of the Securities will be in New York, New York, Charlotte, North
Carolina or in Greensboro, North Carolina a legal holiday or a day on which
banking institutions are authorized by law to close, the payment of such
interest on or principal of the Securities need not be made on such date but may
be made on the next succeeding Business Day, with the same force and effect as
if made on the date of payment and no interest shall accrue for the period from
and after such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
which is required to be included in this Indenture by any of Sections 310 to
317, inclusive, of the Trust Indenture Act of 1939 (to the extent applicable),
such required provision shall control.
SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the
articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument.
SECTION 13.11. Separability.
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
71
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 13.12. Assignment.
The Company will have the right at all times to assign any of
its respective 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, as the case may be, 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.
ARTICLE FOURTEEN
REDEMPTION OF SECURITIES
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.03 for Securities of such series.
SECTION 14.02. Notice of Redemption; Selection of Secu-
rities.
In case the Company shall desire to exercise the right to
redeem all, or, as the case may be, any part of the Securities of any series in
accordance with their terms, it shall fix a date for redemption and shall mail a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Securities of such series so to be
redeemed as a whole or in part at their last addresses as the same appear on the
Security register. Such mailing shall be by first class mail. The notice if
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the holder receives such notice. In any case, failure
to give such notice by mail or any defect in the notice to the holder of any
Security of a series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security
of such series.
Each such notice of redemption shall specify the CUSIP number
of the Securities to be redeemed, the date fixed for redemption, the redemption
price at which Securities of such
72
series are to be redeemed, the place or places of payment, that payment will be
made upon presentation and surrender of such Securities, that interest accrued
to the date fixed for redemption will be paid as specified in said notice, and
that on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. If less than all the Securities of such series
are to be redeemed the notice of redemption shall specify the numbers of the
Securities of that series to be redeemed. In case any Security of a series is to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new Security
or Securities of that series in principal amount equal to the unredeemed portion
thereof will be issued.
Prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the
Trustee or with one or more paying agents an amount of money sufficient to
redeem on the redemption date all the Securities so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption.
If all, or less than all, the Securities of a series are to be
redeemed, the Company will give the Trustee notice not less than 45 or 60 days,
respectively, prior to the redemption date as to the aggregate principal amount
of Securities of that series to be redeemed and the Trustee shall select, in
such manner as in its sole discretion it shall deem appropriate and fair, the
Securities of that series or portions thereof (in integral multiples of $1,000,
except as otherwise set forth in the applicable form of Security) to be
redeemed.
SECTION 14.03. Payment of Securities Called for
Redemption.
If notice of redemption has been given as provided in Section
14.02, the Securities or portions of Securities of the series with respect to
which such notice has been given shall become due and payable on the date and at
the place or places stated in such notice at the applicable redemption price,
together with interest accrued to the date fixed for redemption, and on and
after said date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to said date)
interest on the Securities or portions of Securities of any series so called for
redemption shall cease to accrue. On presentation and surrender of such
Securities at a place of payment specified in said notice, the said Securities
or the specified portions thereof shall be paid and redeemed by the Company at
the applicable redemption price, together with interest accrued thereon to the
date fixed for redemption.
73
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the Company, a
new Security or Securities of such series of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
74
First Union National Bank hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed by their respective authorized officers, as of the
day and year first above written.
UNIFI, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Senior V.P. & CFO
FIRST UNION NATIONAL BANK,
as Trustee
By /s/ ▇. ▇▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Asst. Vice President
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▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇ the 5th day of February, 1998, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, III, to me known, who, being by me duly sworn, did depose and say that he
resides at Greensboro, North Carolina; that he is a Senior Vice President and
Chief Financial Officer of Unifi, Inc., one of the parties described in and
which executed the above instrument; and that he signed his name thereto by
authority of the board of directors of such corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Notary Public
[NOTARIAL SEAL] June 30, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇ the 5th day of February, 1998, before me personally came ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose and say that she
resides at Charlotte, North Carolina; that she is an Assistant Vice President of
First Union National Bank, one of the parties described in and which executed
the above instrument; and that such execution was by authority of the board of
directors of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Notary Public
[NOTARIAL SEAL] June 30, 2001
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