Exhibit 4.3
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Headwaters Incorporated
TO
[ ]
Trustee
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Indenture
Dated as of ____________, 2002
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions................................................1
Section 102. Compliance Certificates and Opinions.......................9
Section 103. Form of Documents Delivered to Trustee.....................9
Section 104. Acts of Holders...........................................10
Section 105. Notices, Etc. to Trustee and Company......................11
Section 106. Notice to Holders; Waiver.................................11
Section 107. Conflict With Trust Indenture Act.........................12
Section 108. Effect of Headings and Table of Contents..................12
Section 109. Successors and Assigns....................................12
Section 110. Separability Clause.......................................12
Section 111. Benefits of Indenture.....................................12
Section 112. Governing Law.............................................13
Section 113. Legal Holidays............................................13
Section 114. Rules by Trustee and Agents...............................13
Section 115. No Recourse Against Others................................13
ARTICLE II
SECURITY FORMS
Section 201. Forms Generally...........................................13
Section 202. Form of Trustee's Certificate of Authentication...........14
ARTICLE III
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series......................14
Section 302. Denominations.............................................19
Section 303. Execution, Authentication, Delivery and Dating............19
Section 304. Temporary Securities......................................21
Section 305. Registration, Registration of Transfer and Exchange.......22
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Section 306. Mutilated, Destroyed, Lost and Stolen Securities..........23
Section 307. Payment of Interest; Interest Rights Preserved............24
Section 308. Persons Deemed Owners.....................................25
Section 309. Cancellation..............................................26
Section 310. Computation of Interest...................................26
Section 311. Global Securities; Exchanges; Registration and
Registration of Transfer................................26
Section 312. Extension of Interest Payment.............................28
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture...................28
Section 402. Application of Trust Money................................29
Section 403. Satisfaction, Discharge and Defeasance of
Securities of Any Series................................30
ARTICLE V
REMEDIES
Section 501. Events of Default.........................................31
Section 502. Acceleration of Maturity; Rescission and Annulment........33
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee..............................................34
Section 504. Trustee May File Proofs of Claim..........................35
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons...................................35
Section 506. Application of Money Collected............................36
Section 507. Limitation on Suits.......................................36
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................37
Section 509. Restoration of Rights and Remedies........................37
Section 510. Rights and Remedies Cumulative............................37
Section 511. Delay or Omission Not Waiver..............................37
Section 512. Control by Holders........................................37
Section 513. Waiver of Past Defaults...................................38
Section 514. Undertaking for Costs.....................................38
Section 515. Waiver of Stay or Extension Laws..........................39
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ARTICLE VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.......................39
Section 602. Notice of Defaults........................................40
Section 603. Certain Rights of Trustee.................................40
Section 604. Not Responsible for Recitals or Issuance of
Securities..............................................42
Section 605. May Hold Securities.......................................42
Section 606. Money Held in Trust.......................................42
Section 607. Compensation and Reimbursement............................42
Section 608. Disqualification; Conflicting Interests...................43
Section 609. Corporate Trustee Required; Eligibility...................43
Section 610. Resignation and Removal; Appointment of Successor.........43
Section 611. Acceptance of Appointment by Successor....................45
Section 612. Merger, Conversion, Consolidation or Succession
to Business.............................................46
Section 613. Preferential Collection of Claims Against Company.........46
Section 614. Appointment of Authenticating Agent.......................46
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses
of Holders..............................................48
Section 702. Preservation of Information; Communications
to Holders..............................................49
Section 703. Reports by Trustee........................................50
Section 704. Reports by Company........................................51
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc. Only on Certain Terms.......52
Section 802. Successor Corporation Substituted.........................52
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders........53
Section 902. Supplemental Indentures With Consent of Holders...........54
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Section 903. Execution of Supplemental Indentures......................56
Section 904. Effect of Supplemental Indentures.........................57
Section 905. Conformity With Trust Indenture Act.......................57
Section 906. Reference in Securities to Supplemental Indentures........57
Section 907. Revocation and Effect of Consents.........................57
Section 908. Modification Without Supplemental Indenture...............58
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest................58
Section 1002. Maintenance of Office or Agency...........................59
Section 1003. Money for Securities Payments to Be Held in Trust.........60
Section 1004. Corporate Existence.......................................61
Section 1005. Defeasance of Certain Obligations.........................61
Section 1006. Statement by Officers as to Default.......................63
Section 1007. Waiver of Certain Covenants...............................63
Section 1008. Maintenance of Properties.................................64
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article..................................64
Section 1102. Election to Redeem; Notice to Trustee.....................64
Section 1103. Selection by Trustee of Securities to Be Redeemed.........65
Section 1104. Notice of Redemption......................................65
Section 1105. Securities Payable on Redemption Date.....................67
Section 1106. Securities Redeemed in Part...............................67
ARTICLE XII
SINKING FUNDS
Section 1201. Applicability of Article..................................67
Section 1202. Satisfaction of Sinking Fund Payments With
Securities..............................................68
Section 1203. Redemption of Securities for Sinking Fund.................68
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ARTICLE XIII
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 1301. Applicability of Article..................................68
Section 1302. Notice of Repayment Date..................................68
Section 1303. Securities Payable on Repayment Date......................70
Section 1304. Securities Repaid in Part.................................70
v
INDENTURE, dated as of [ ], 2002, between HEADWATERS
INCORPORATED, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and [ ]
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (each herein called a
"Security" or collectively the "Securities"), in an unlimited aggregate
principal amount to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires;
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation or, at
the election of the Company from time to time, at the date of the execution and
delivery of this Indenture;
(4) the word "or" is not exclusive; and
(5) 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.
Certain terms, used principally in Article VI, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper of general circulation, in an
official language of the country of publication or in the English language,
customarily published on a daily basis (including newspapers published on a
daily basis except not published on Legal Holidays, as defined in Section 113)
in such country. Whenever successive weekly publications in an Authorized
Newspaper are required hereunder, they may be made (unless otherwise expressly
provided herein) on the same or different days of the week and in the same or
different Authorized Newspapers.
"Authorized Officer" means the Chairman of the Board, its Vice
Chairman, the President, any Senior Vice President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary, any Assistant Secretary or
any other officer or agent of the Company duly authorized by the Board of
Directors to act in respect of matters relating to this Indenture.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location specified in the Securities or this Indenture, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment such other location, or the city
in which the Corporate Trust Office of the Trustee is located, are authorized or
obligated by law to close, except as may be otherwise specified as contemplated
by Section 301.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by an Authorized Officer and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered
and, with respect to [ ], shall be located in [ ].
"Corporation" includes corporations, associations, joint stock
companies, limited liability companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to any series of Securities issuable
or issued in the form of a Global Security, an entity named as such in the
Indenture, or, if no entity is so named, an entity, if any, named by the Company
as such by Board Resolution, or its successor. The Depository is the entity
which holds a Global Security, if any, and operates the computerized book-entry
system through which ownership interests in the Securities are recorded. Such
entity shall at all times be a registered clearing agency under the Securities
Exchange Act of 1934, as amended, and in good standing thereunder or, in the
case of an entity that holds a Global Security issued outside of the United
States, such entity shall at all times be in compliance with any applicable
registration requirements and in good standing under application regulations.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in Dollars, U.S. Government
Obligations; or
(b) with respect to Securities denominated in a currency other than
Dollars or in a composite currency, such other obligations or instruments as
shall be specified with respect to such Securities, as contemplated by Section
301(24).
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security, if any, issued to evidence all or a
part of a series of Securities in accordance with Section 301.
"Holder" means the bearer of an Unregistered Security or coupon
appertaining thereto or a Person in whose name a Registered Security is
registered in the Security Register or the Person who is the record owner of any
ownership interests in a Global Security.
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"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, upon call for redemption, exercise of repayment
option or otherwise.
"Officer's Certificate" means a certificate signed by an Authorized
Officer and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of, or counsel for, the Company or an Affiliate of the Company, and who
shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities or portions thereof for whose payment or
redemption (a) money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities or (b) Eligible Obligations as contemplated by Sections 401
and 403 in the necessary amount have been theretofore deposited with
the Trustee, in trust, for the Holders of such Securities (whether or
not the Company's indebtedness in respect thereof shall be satisfied
and discharged for purposes of this Indenture or otherwise), provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
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(c) Securities that have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there have been presented to the
Trustee proof satisfactory to it and the Company that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder,
(w) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns (i) all
Securities Outstanding under this Indenture or (ii) except for the
purposes of actions to be taken by Holders of more than one series or
Tranche voting as a class, all Outstanding Securities of each such
series and each such Tranche, as the case may be, determined without
regard to this clause) shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor;
(x) in determining whether the Holders of the requisite principal
amount of Securities of any series or Tranche have concurred in any
direction, waiver or consent, the principal amount of Original Issue
Discount Securities that shall be deemed to be outstanding shall be the
amount of the principal thereof that would be due and payable as of the
date of such determination upon acceleration of the maturity thereof
pursuant to Section 502;
(y) in the case of any Security the principal of which is payable from
time to time without presentment or surrender, the principal amount of
such Security that shall be deemed to be Outstanding at any time for
all purposes of this Indenture shall be the original principal amount
thereof less the aggregate amount of principal thereof theretofore
paid; and
(z) the principal amount of any Security which is denominated in a
currency other than Dollars or in a composite currency that shall be
deemed to be Outstanding for such purposes shall be the amount of
Dollars that could have been purchased by the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent
on the date determined as set forth below of the amount determined as
provided in (x) above) of such currency or composite currency evidenced
by such Security, in each such case certified to the Trustee in an
Officer's Certificate based (i) on the average of the mean of the
buying and selling spot rates quoted by three banks which are members
of the New York Clearing House Association selected by the Company in
effect at 11:00 A.M. (New York time) in The City of New York on the
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fifteenth Business Day preceding any such determination or (ii) if on
such fifteenth Business Day it is not possible or practicable to obtain
such quotations from such three banks, on such other quotations or
alternative methods of determination that shall be as consistent as
practicable with the method set forth in (i) above.
"Paying Agent" means any Person, including the Company, authorized by
the Company to pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time any or all of the specific terms of which Securities, including
without limitation the rate or rates of interest, if any, thereon, the Stated
Maturity or Maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents from time to
time subsequent to the initial request for the authentication and delivery of
such Securities by the Trustee, all as contemplated in Section 301 and clause
(2) of Section 303.
"Person" means any individual, corporation, partnership, limited
liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, or any Tranche thereof, means the place or places where the principal of
(and premium, if any) and interest, if any, on the Securities of that series or
Tranche are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to Section 301
of this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture, exclusive of accrued and unpaid interest, if any.
"Registered Security" means any Security issued hereunder and
registered by the Security Registrar or any recorded interest in a Global
Security issued hereunder.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Repayment Date", when used with respect to any Security of any series
to be repaid or repurchased, means the date, if any, fixed for such repayment or
for such repurchase (whether at the option of the Holders or otherwise) pursuant
to Section 301 of this Indenture.
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"Repayment Price", when used with respect to any Security of any series
to be repaid, means the price, if any, at which it is to be repaid pursuant to
Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the corporate trust department or any other successor group of
the Trustee, including any vice president, assistant vice president, assistant
secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer of
the Trustee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Security or Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Securities" means Securities other than Subordinated
Securities.
"series" or "series of Securities" means a series of Securities issued
under this Indenture as determined by Board Resolution or as otherwise
determined under this Indenture, and except as otherwise provided in Section
608.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subordinated Securities" means Securities that by the terms
established pursuant to Subsection 301(10) are subordinate to any specified debt
of the Company.
"Subsidiary" means (i) any corporation, association or other business
entity of which more than 50% of the outstanding total voting stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries or (ii) any partnership the
sole general partner or the managing general partner of which is the Company or
a Subsidiary of the Company or the only general partners of which are the
Company or of one or more Subsidiaries of the Company (or any combination
thereof). For the purposes of this definition, "voting stock" means, in the case
of a corporation, stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of capital
stock has such voting power by reason of any contingency, in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, in the case
of a partnership or limited liability company, partnership or membership
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interests (whether general or limited), and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person.
"Tranche" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount or date of issuance.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have been appointed
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
each Person who is then a Trustee hereunder, and if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"U.S. Government Obligations" means (a) direct obligations of the
United States for the payment of which its full faith and credit is pledged, or
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed by the United States and (b) certificates, depositary receipts or
other instruments which evidence a direct ownership interest in obligations
described in clause (a) above or in any specific interest or principal payments
due in respect thereof; provided, however, that the custodian of such
obligations or specific interest or principal payments shall be a bank or trust
company (which may include the Trustee or any Paying Agent) subject to federal
or state supervision or examination with a combined capital and surplus of at
least $50,000,000; and provided, further, that except as may be otherwise
required by law, such custodian shall be obligated to pay to the holders of such
certificates, depositary receipts or other instruments the full amount received
by such custodian in respect of such obligations or specific payments and shall
not be permitted to make any deduction therefrom.
"U.S. Person" means a citizen, national or resident of the United
States, a corporation, partnership, limited liability company, or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust whose income from sources without the
United States is includible in gross income for United States federal income tax
purposes regardless of its connection with the conduct of a trade or business
within the United States.
"Unregistered Security" means any Security issued hereunder which is
not a Registered Security.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Yield to Maturity" means the yield to maturity, calculated by the
Company at the time of issuance of a series of Securities or, if applicable, at
the most recent determination of interest on such series in accordance with
accepted financial practice.
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Section 102. Compliance Certificates and Opinions. Except as otherwise
expressly provided in this Indenture upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture,
the Company shall, if requested by the Trustee, furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 704(4)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel. Any such
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
9
Section 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be made, given or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent, or of the
holding by any Person of Unregistered Securities, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner acceptable to the Trustee.
(c) The amount of Unregistered Securities held by any Person
executing any such instrument or writings as the Holder thereof, and the numbers
of such Unregistered Securities, and the date of his holding the same, may be
proved by the production of such Unregistered Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or member of a
national securities exchange (wherever situated), if such certificate is in form
satisfactory to the Trustee, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Unregistered
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person executing such instrument or writing as the Holder
thereof, if such certificate or affidavit is in form satisfactory to the
Trustee. The Trustee and the Company may assume that such ownership of any
Unregistered Securities continues until (1) another certificate bearing a later
date issued in respect of the same Unregistered Securities is produced, or (2)
such Unregistered Securities are produced by some other Person, or (3) such
Unregistered Securities are registered as to principal or are surrendered in
exchange for Unregistered Securities, or (4) such Unregistered Securities are no
longer Outstanding.
(d) The fact and date of execution of any such instrument or
writing and the amount and number of Unregistered Securities held by the Person
so executing such instrument or writing may also be proved in any other manner
that the Trustee deems sufficient; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this Section.
(e) The principal amount (except as otherwise contemplated in
clause (x) of the proviso to the definition of "Outstanding") and serial numbers
of Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
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(f) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(g) The Company may set a record date for purposes of
determining the identity of Holders of any Securities of any series entitled to
vote or consent to any action by vote or consent authorized or permitted by
Section 512 or 513. Such record date shall be the later of 30 days prior to the
first solicitation of such consent or the date of the most recent list of
Holders of such Securities furnished to the Trustee pursuant to Section 701
prior to such solicitation.
(h) If the Company solicits from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, 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 Act may be given before or after such record
date, but only the Holders of record at the close of business on the record date
shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of the Outstanding Securities have authorized or agreed
or consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of the record date.
Section 105. Notices, Etc. to Trustee and Company. Except as otherwise
provided herein, any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: [ ], [ ], or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 106. Notice to Holders; Waiver. Except as otherwise expressly
provided herein, where this Indenture provides for notice of any event or
reports to Holders, such notice or report shall be sufficiently given if in
writing and mailed, first-class postage prepaid, to each Holder of Registered
Securities affected by such event, at the address of such Holder as it appears
in the Security Register and to addresses filed with the Trustee or preserved on
the Trustee's list pursuant to Section 702(a) for other Holders (and to such
11
other addressees as may be required in the case of such notice or report under
Section 313(c) of the Trust Indenture Act), not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice or
report.
In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Notice shall be sufficiently given to Holders of Unregistered
Securities if published in an Authorized Newspaper in each of The City of New
York and, if such Securities are listed on any stock exchange outside of the
United States, in the city in which such stock exchange is located, or in such
other city or cities as may be specified in the Securities, once in each of two
different calendar weeks, the first publication to be not earlier than the
earliest date, and not later than the last date, if any, prescribed for the
giving of such notice.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause is impracticable to give such notice by mail, then
such notification that is made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
If it is impractical in the opinion of the Trustee or the Company to
make any publication of any notice required hereby in an Authorized Newspaper,
any publication or other notice in lieu thereof that is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
Section 107. Conflict With Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with the duties imposed by operation of
subsection (c) of Section 318 of the Trust Indenture Act, the imposed duties
shall control.
Section 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause. In case any provision in this
Indenture or in the Securities is invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto (including any Paying Agent appointed pursuant to Section 1002 and
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Authenticating Agent appointed pursuant to Section 614 to the extent provided
herein) and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date or Stated Maturity of any Security is not
a Business Day at any Place of Payment or the city in which the Corporate Trust
Office of the Trustee is located, then (notwithstanding any other provision of
this Indenture or of the Securities other than a provision in Securities of any
series, or any Tranche thereof, or in the Board Resolution or Officer's
Certificate that establishes the terms of such Securities or Tranche, that
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, Repayment Date, or at the Stated
Maturity, provided that no interest shall accrue with respect to such payment
for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date or Stated Maturity, as the case may be.
Section 114. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or at a meeting of Holders of one or more series.
The Paying Agent or Security Registrar may make reasonable rules and set
reasonable requirements for its functions.
Section 115. No Recourse Against Others. No past, present or future
director, officer, stockholder or employee, as such, of the Company or any
successor corporation shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for the execution of this Indenture and the issue of the
Securities.
ARTICLE II
SECURITY FORMS
Section 201. Forms Generally. The Securities of each series and related
coupons, if any, shall be in substantially the form as shall be established by
or pursuant to a Board Resolution 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 Indenture 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 the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. When the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such Securities.
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If required or appropriate under applicable law, Unregistered
Securities and their coupons must have the following statement on their face:
"Any United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the Internal Revenue Code". If
required or appropriate under applicable law, Unregistered Securities and their
coupons must have the following statement on their face: "By accepting this
obligation, the Holder represents and warrants that it is not a U.S. Person
(other than an exempt recipient described in section 6049(b)(4) of the Internal
Revenue Code and the regulations thereunder) and that it is not acting for or on
behalf of a U.S. Person (other than an exempt recipient described in section
6049(b)(4) of the Internal Revenue Code and the regulations thereunder)."
The definitive Securities shall be produced in such manner or
combination of manners, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the following
form:
This is one of the Securities of the series designated herein, referred
to in the within-mentioned Indenture.
[ ]
as Trustee
By __________________________________
Authorized Officer
ARTICLE III
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There may be
Registered Securities and Unregistered Securities within a series. Registered
and Unregistered Securities may be in temporary or permanent global form.
Unregistered Securities may be issued with or without coupons attached.
Unregistered Securities may be subject to such restrictions, and contain such
legends, as may be required by United States laws and regulations. Subject to
the last paragraph of this Section, there shall be established in or pursuant to
a Board Resolution, and set forth in an Officer's Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance of Securities
of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
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(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305 and except for any Securities that, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the price or prices (expressed as a percentage of the
principal amount thereof) at which the securities will be issued and
the date or dates on which the principal (and premium, if any) of the
Securities of the series, or any Tranche thereof, is payable;
(4) the date or dates on which the principal of the Securities
of such series, or any Tranche thereof, is payable or any formula or
other method or other means by which such date or dates shall be
determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise (without regard to
any provisions for redemption, prepayment, acceleration, purchase or
extension);
(5) the rate or rates at which the Securities of such series,
or any Tranche thereof, shall bear interest, if any (including the rate
or rates at which overdue principal shall bear interest, if different
from the rate or rates at which such Securities shall bear interest
prior to Maturity, and, if applicable, the rate or rates at which
overdue premium or interest shall bear interest, if any), or any
formula or other method or other means by which such rate or rates
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Indenture or otherwise; the date or dates
from which such interest shall accrue; the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on such Securities on any Interest
Payment Date; the right of the Company, if any, to extend the interest
payment periods and the duration of any such extension as contemplated
by Section 312; and the basis of computation of interest, if other than
as provided in Section 310;
(6) the place or places where the principal of (and premium,
if any) and interest, if any, on Securities of the series, or any
Tranche thereof, shall be payable, any Registered Securities of the
series, or any Tranche thereof, may be surrendered for registration of
transfer, Securities of the series, or any Tranche thereof, may be
surrendered for exchange, and where notices and demands to or upon the
Company in respect of the Securities of the series, or any Tranche
thereof, and this Indenture may be served and notices to Holders
pursuant to Section 106 will be published; the Security Registrar and
any Paying Agent or Agents for such series or Tranche; and if such is
the case, that the principal of such Securities shall be payable
without presentment or surrender thereof;
(7) if applicable, the period or periods within which, the
price or prices at which and the terms and conditions upon which
Securities of the series, or any Tranche thereof, may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series, or any Tranche thereof, pursuant to
any sinking fund or analogous provisions and the period or periods
15
within which, the price or prices at which and the terms and conditions
upon which Securities of the series, or any Tranche thereof, shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the obligation, if any, of the Company to offer to repay
or repurchase Securities of the series, or any Tranche thereof, in
circumstances described therein, and the period or periods within
which, the price or prices at which and the terms and conditions upon
which Securities of the series, or any Tranche thereof, shall be repaid
or repurchased, in whole or in part, at the option of the Holders;
(10) the terms, if any, on which the Securities of such series
will be subordinate in right and priority of payment to other debt of
the Company;
(11) the right, if any, of the Company to execute and deliver
to the Trustee, and to direct the Trustee to authenticate and deliver
in accordance with a Company Order, a Security of any series, or any
Tranche thereof, in lieu of or in exchange for any Securities of such
series, or any Tranche thereof, cancelled upon redemption or repayment;
(12) the denominations in which any Registered Securities of
the series, or any Tranche thereof, shall be issuable, if other than
denominations of $1,000 and any integral multiple thereof, and the
denomination or denominations in which any Unregistered Securities of
the series, or any Tranche thereof, shall be issuable, if other than
the denomination of $5,000;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series, or any Tranche
thereof, that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502;
(14) whether Securities of the series are to be issuable as
Registered Securities, Unregistered Securities, or both, whether
Securities of the series are to be issuable with or without coupons,
whether any Securities of the series are to be issuable initially in
temporary global form (and, if so, the identity of the depositary for
such Securities) and the circumstances under which such Securities in
temporary global form may be exchanged for definitive Securities, and
whether any Securities of the series are to be issuable in permanent
global form (and, if so, the identity of the depositary for such
Securities) with or without coupons and, if so, whether beneficial
owners of interests in any such permanent Global Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 311;
(15) whether and under what circumstances the Company will pay
additional amounts on the Securities of that series held by a person
who is not a U.S. Person in respect of taxes or similar charges
withheld or deducted and, if so, whether the Company will have the
option to redeem such Securities rather than pay such additional
amounts;
(16) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any)
and interest, if any, on the Securities of the series, or any Tranche
16
thereof, shall be payable (if other than the currency of the United
States of America) and the formula or other method or other means by
which the equivalent of any such amount in Dollars is to be determined
for any purpose, including for the purpose of determining the principal
amount of such Securities deemed to be Outstanding at any time;
(17) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(18) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and amount of
such securities or other property, or the formula or other method or
other means by which such amount shall be determined, and the period or
periods within which, and the terms and conditions upon which, any such
election may be made;
(19) if the amount of payments of principal of (and premium,
if any) or interest on the Securities of the series may be determined
with reference to an index or other fact or event ascertainable outside
of this Indenture, the manner in which such amounts shall be determined
to the extent not established pursuant to paragraph (5) of this
Section;
(20) the form or forms of the Securities, including such
legends as may be required by United States laws or regulations, the
form of any coupons or temporary Global Security, if any, which may be
issued and the forms of any certificates which may be required
hereunder or under United States laws or regulations in connection with
the offering, sale, delivery or exchange of Unregistered Securities, if
any;
(21) the Person to whom any interest on any Registered
Security of the series, or any Tranche thereof, shall be payable, if
other than the Person in whose name that Security is registered at the
close of business on the Regular Record Date for such interest, and the
manner in which, or the Person to whom, any interest on any
Unregistered Security of the series, or any Tranche thereof, shall be
payable, if otherwise than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the extent
to which, or the manner in which, any interest payable on a temporary
or permanent Global Security on an interest payment date will be paid;
(22) any Events of Default, in addition to those specified in
Section 501, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in addition to those
set forth in Article X;
(23) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or exchanged
for shares of capital stock or other securities of the Company or any
other Person;
17
(24) the obligations or instruments, if any, that shall be
considered to be Eligible Obligations in respect of the Securities of
such series, or any Tranche thereof, denominated in a currency other
than Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's
indebtedness in respect of such Securities after the satisfaction and
discharge thereof as provided in Section 401;
(25) any exceptions to Section 113, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof;
(26) any collateral security, assurance or guarantee for the
Securities of such series;
(27) the non-applicability of Section 608 to the Securities of
such series or any exceptions or modifications of Section 608 with
respect to the Securities of such series;
(28) any rights or duties of another Person to assume the
obligations of the Company with respect to the Securities of such
series (whether as joint obligor, primary obligor, secondary obligor or
substitute obligor) and any rights or duties to discharge and release
any obligor with respect to the Securities of such series or this
Indenture to the extent related to such series;
(29) if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche
thereof, the amount or terms thereof; and
(30) any other terms, conditions and rights of the series
(which terms, conditions and rights shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series and the coupons appertaining to any
Unregistered Securities of such series shall be substantially identical except
in the case of Registered Securities as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution and set forth in
such Officer's Certificate or in any such indenture supplemental hereto and as
reasonably acceptable to the Trustee. Securities of different series may differ
in any respect.
If the terms and form or forms of any series of Securities are
established by or pursuant to a Board Resolution, the Company shall deliver a
copy of such Board Resolution to the Trustee at or prior to the issuance of such
series with (1) the form or forms of Security that have been approved attached
thereto, or (2) if such Board Resolution authorizes a specific officer or
officers to approve the terms and form or forms of the Securities, a certificate
of such officer or officers approving the terms and form or forms of Security
with such form or forms of Securities attached thereto. Such Board Resolution or
certificate may provide general terms or parameters for Securities of any series
and may provide that the specific terms of particular Securities of a series may
be determined in accordance with or pursuant to the Company Order referred to in
Section 303 hereof.
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With respect to Securities of a series subject to a Periodic Offering,
the indenture supplemental hereto or the Board Resolution that establishes such
series, or the Officer's Certificate pursuant to such supplemental indenture or
Board Resolution, as the case may be, may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
Securities of such series, or any Tranche thereof, shall be specified in a
Company Order or that such terms shall be determined by the Company or its
agents in accordance with procedures specified in a Company Order as
contemplated by the third paragraph of Section 303.
Unless otherwise specified with respect to a series of Securities
pursuant to paragraph (2) of this Section, any limit upon the aggregate
principal amount of a series of Securities may be increased without the consent
of any Holders and additional Securities of such series may be authenticated and
delivered up to the limit upon the aggregate principal amount authorized with
respect to such series as so increased.
Section 302. Denominations. The Securities of each series shall be
issuable in registered or unregistered form with or without coupons in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof and the Unregistered Securities of the
series shall be issuable in denominations of $5,000 and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board and Chief Executive Officer, its President, its Senior Vice President,
Finance, or its Treasurer, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile. The coupons, if
any, of Unregistered Securities shall bear the manual or facsimile signature of
any one of the officers or assistant officers referred to in the first sentence
of this Section.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities provided,
however, that, with respect to Securities of a series subject to a Periodic
Offering, (a) such Company Order may be delivered by the Company to the Trustee
prior to the delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of such
series for original issue from time to time, in an aggregate principal amount
not exceeding the aggregate principal amount established for such series, all
pursuant to a Company Order or pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by a Company Order, (c) the
maturity date or dates, original issue date or dates, interest rate or rates and
19
any other terms of Securities of such series shall be determined by Company
Order or pursuant to such procedures and (d) if provided for in such procedures,
such Company Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized agent or agents,
which oral instructions shall be promptly confirmed in writing.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that such form of Securities has been established in
conformity with the provisions of this Indenture;
(b) that such terms have been established in conformity with
the provisions of this Indenture; and
(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, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights generally and to general equity principles.
Notwithstanding the provisions of Section 301 and of the preceding
paragraphs, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraphs at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issuance of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication
and each Unregistered Security shall be dated the date of its original issuance.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature and no coupon shall be valid until
the Security to which it appertains has been so authenticated, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, until the Company has delivered an
Officer's Certificate to the Trustee and the Security Registrar stating that, as
a result of the action described, the Company would not suffer adverse
20
consequences under the provisions of United States law or regulations in effect
at the time of the delivery of Unregistered Securities, the Trustee or the
Security Registrar will (i) deliver Unregistered Securities only outside the
United States and its possessions and (ii) release Unregistered Securities in
definitive form to the person entitled to physical delivery thereof only upon
presentation of a certificate in the form prescribed by the Company.
Section 304. Temporary Securities. Pending the preparation of
definitive Registered Securities of any series (including Global Securities),
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Registered Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Registered Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. Every temporary
Registered Security shall be executed by the Company and authenticated by the
Trustee, and registered by the Security Registrar, upon the same conditions, and
with like effect, as a definitive Registered Security.
If temporary Securities of any series are issued, the Company will
cause definitive Registered Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Registered Securities of
such series, the temporary Registered Securities of such series shall be
exchangeable for definitive Registered Securities of such series upon surrender
of the temporary Registered Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Registered
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Registered Securities of the same series of authorized denominations.
Until so exchanged the temporary Registered Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Registered Securities of such series.
Until definitive Unregistered Securities of any series (including
Global Securities) are ready for delivery, the Company may prepare and execute
and the Trustee shall authenticate one or more temporary Unregistered
Securities, which may have coupons attached or which may be in the form of one
or more temporary Global Unregistered Securities of that series without coupons.
The temporary Unregistered Security or Securities of any series shall be
substantially in the form approved by or pursuant to a Board Resolution and
shall be delivered to one of the Paying Agents located outside the United States
and its possessions or to such other person or persons as the Company shall
direct against such certification as the Company may from time to time prescribe
by or pursuant to a Board Resolution. The temporary Unregistered Security or
Securities of a series shall be executed by the Company and authenticated by the
Trustee upon the same conditions, and with like effect, as a definitive
Unregistered Security of such series, except as provided herein or in the Board
Resolution or supplemental Indenture relating thereto. A temporary Unregistered
Security or Securities shall be exchangeable for definitive Unregistered
Securities at the time and on the conditions, if any, specified in the temporary
Security.
Upon any exchange of a part of a temporary Unregistered Security of a
series for definitive Unregistered Securities of such series, the temporary
Unregistered Security shall be endorsed by the Trustee or Paying Agent to
21
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of the definitive Unregistered Securities of such
series so exchanged and endorsed.
Section 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Except in the case of Securities issued in the form of a Global
Security, upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company in a Place of Payment for
that series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series, of any authorized denominations
and of a like aggregate principal amount.
If both Registered and Unregistered Securities are authorized for a
series of Securities and the terms of such Securities permit, (i) Unregistered
Securities may be exchanged for an equal principal amount of Registered or
Unregistered Securities of the same series and date of maturity in any
authorized denominations upon delivery to the Security Registrar (or a Paying
Agent (as herein defined), if the exchange is for Unregistered Securities) of
the Unregistered Security with all unmatured coupons and all matured coupons in
default appertaining thereto and if all other requirements of the Security
Registrar (or such Paying Agent) and such Securities for such exchange are met,
and (ii) Registered Securities, other than Securities issued in the form of a
Global Security (except as provided in Section 311), may be exchanged for an
equal principal amount of Unregistered Securities of the same series and date of
maturity in any authorized denominations (except that any coupons appertaining
to such Unregistered Securities which have matured and have been paid shall be
detached) upon delivery to the Security Registrar of the Registered Securities
and if all other requirements of the Security Registrar and such Securities for
such exchange are met.
Notwithstanding the foregoing, the exchange of Unregistered Securities
for Registered Securities or Registered Securities for Unregistered Securities
will be subject to the satisfaction of the provisions of United States law and
regulations in effect at the time of such exchange, and no exchange of
Registered Securities for Unregistered Securities will be made until the Company
has notified the Trustee in an Officer's Certificate and the Security Registrar
that, as a result of such exchange, the Company would not suffer adverse
consequences under such law or regulations.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in a Board Resolution or an Officer's
Certificate pursuant to a Board Resolution, or in an indenture supplemental
hereto, with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made to the Holder for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1106 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Unregistered Securities or any coupons appertaining thereto shall be
transferable by delivery thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon or coupons appertaining
to it is surrendered to the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a replacement Registered
Security, if such surrendered security was a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the surrendered Security, if such surrendered Security was an
Unregistered Security, of the same series and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or any
coupon or coupons appertaining thereto, and (ii) such bond, security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of actual notice to the Company or
the Trustee that such Security or any coupon or coupons appertaining thereto has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, a replacement Registered
Security, if such Holder's claim pertains to a Registered Security, or a
replacement Unregistered Security with coupons corresponding to the coupons
appertaining to the destroyed, lost or stolen Unregistered Security or the
Unregistered Security to which such destroyed, lost or stolen coupon or coupons
appertains, if such Holder's claim pertains to an Unregistered Security, of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security or any
coupon or coupons appertaining thereto has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security or any coupon or coupons appertaining thereto.
23
Upon the issuance of any new Security under this Section or any coupon
or coupons appertaining thereto, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security or any coupon or coupons appertaining thereto of any
series issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or any coupon or coupons appertaining thereto shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security or any coupon or coupons appertaining thereto
is at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
or any coupon or coupons appertaining thereto of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or any coupon or
coupons appertaining thereto.
Section 307. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 301 with respect to the Securities
of any series, or any Tranche thereof, interest on any Registered Security that
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Registered Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest. In case an Unregistered Security of any
series is surrendered in exchange for a Registered Security of such series after
the close of business (at an office or agency of the Company in a Place of
Payment for such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest Payment
Date, such Unregistered Security shall be surrendered without the coupon
relating to such Interest Payment Date and interest will not be payable on such
Interest Payment Date in respect of the Registered Security issued in exchange
for such Unregistered Security, but will be payable only to the Holder of such
coupon when due in accordance with provisions of this Indenture.
Any interest on any Registered Security of any series that is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
24
such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Registered Securities of such series at the
address of such Holder as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case an Unregistered Security
of any series is surrendered at the office or agency of the Company in
a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of
Defaulted Interest, such Unregistered Security shall be surrendered
without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such
Unregistered Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series 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.
Subject to the foregoing provisions of this Section, each Registered
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Registered Security shall carry the rights
to interest accrued and unpaid, and to accrue, which were carried by such other
Registered Security.
Subject to the limitations set forth in Section 1002, the Holder of any
coupon appertaining to an Unregistered Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
Section 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
25
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 301 and Section 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Ownership of Registered Securities of a series shall be proved by the
computerized book-entry system of the Depository in the case of Registered
Securities issued in the form of a Global Security. Ownership of Unregistered
Securities may be proved by the production of such Unregistered Securities or by
a certificate or affidavit executed by the person holding such Unregistered
Securities or by a depository with whom such Unregistered Securities were
deposited, if the certificate or affidavit is satisfactory to the Trustee and
the Company. The Company, the Trustee and any agent of the Company may treat the
bearer of any Unregistered Security or coupon and the person in whose name a
Registered Security is registered as the absolute owner thereof for all
purposes.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation. Except as otherwise specified as
contemplated by Section 301 for Securities of any series, all Securities and
coupons surrendered for payment, redemption, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and, if not
theretofore cancelled, shall be promptly cancelled by it. Except as otherwise
specified as contemplated by Section 301 for Securities of any series, the
Company may at any time deliver to the Trustee for cancellation any Securities
or coupons previously authenticated and delivered hereunder that the Company may
have acquired in any manner whatsoever or that the Company has not issued and
sold, and all Securities or coupons so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities or coupons cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities or coupons held
by the Trustee shall be destroyed and the Trustee shall furnish an affidavit to
the Company (setting forth the serial numbers of such Securities) attesting to
such destruction unless by a Company Order the Company shall direct that the
cancelled Securities or coupons be returned to it.
Section 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a year of twelve
30-day months.
Section 311. Global Securities; Exchanges; Registration and
Registration of Transfer. If specified as contemplated by Section 301, the
Securities may be issued in the form of one or more Global Securities, which
shall be deposited with the Depository, and, unless otherwise specified in the
form of Global Security adopted pursuant to Section 301, be registered in the
name of the Depository's nominee.
26
Except as otherwise specified as contemplated by Section 301, any
permanent Global Security shall be exchangeable only as provided in this
paragraph. If the beneficial owners of interests in a permanent Global Security
are entitled to exchange such interests for Securities of such series of like
tenor and principal amount of another authorized form, as specified as
contemplated by Section 301, then without unnecessary delay but in any event not
later than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such permanent
Global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent Global Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee and the Depository (which instructions shall be in writing but need not
comply with Section 102 or be accompanied by an Opinion of Counsel) by the
Depository or such other depository as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities of the same series
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent Global Security, a like aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent Global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Unregistered Securities and as Registered Securities, as specified as
contemplated by Section 301, shall be in the form of Unregistered Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during the periods specified by Section 305; and provided, further, that no
Unregistered Security delivered in exchange for a portion of a permanent Global
Security shall be mailed or otherwise delivered to any location in the United
States unless the Company has complied with the fourth paragraph of Section 305.
Promptly following any such exchange in part, such permanent Global Security
shall be returned by the Trustee, to the Depository or such other depository
referred to above, in accordance with the instructions of the Company referred
to above.
The Global Security may be transferred to another nominee of the
Depository, or to a successor Depository selected by the Company, and upon
surrender for registration of transfer of the Global Security to the Trustee,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee, a new Global Security in the same
aggregate principal amount. If at any time the Depository notifies the Company
that it is unwilling or unable to continue as Depository and a successor
Depository satisfactory to the Company is not appointed within 90 days after the
Company receives such notice, the Company will execute, and the Trustee will
authenticate and deliver, Securities in definitive form to the Depository in
exchange for the Global Security. In addition, if at any time the Company
determines that it is not in the best interest of the Company or the beneficial
owners of Securities to continue to have a Global Security representing all of
the Securities held by a Depository, the Company may, at its option, execute,
and the Trustee will authenticate and deliver, Securities in definitive form to
the Depository in exchange for all or a portion of the Global Security. Promptly
after any such exchange of Securities in definitive form for all or a portion of
the Global Security pursuant to this paragraph, the Company shall promulgate
regulations governing registration of transfers and exchanges of Securities in
definitive form, which regulations shall be reasonably satisfactory to the
Trustee and shall thereafter bind every Holder of such Securities.
27
Section 312. Extension of Interest Payment. The Company shall have the
right at any time, so long as the Company is not in default in the payment of
interest on the Securities of any series hereunder, to extend interest payment
periods on all Securities of one or more series, if so specified as contemplated
by Section 301 with respect to such Securities and upon such terms as may be
specified as contemplated by Section 301 with respect to such Securities. If the
Company ever so extends any such interest payment period, the Company shall
promptly notify the Trustee.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture. (a) This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (ii) Securities that are deemed
paid and discharged pursuant to Section 403) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption
pursuant to Article XI hereof under arrangements
satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the
expense, of the Company, or
(iv) are deemed paid and discharged pursuant
to Section 403, as applicable,
and the Company, in the case of clause (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount of (a) money, or (b) (I) Eligible
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide on or
before the Stated Maturity or Redemption Date, as the case may be,
money in an amount, or (II) a combination of money or Eligible
Obligations as provided in clause (I) above, in each case sufficient,
in the opinion of a nationally recognized firm of independent certified
28
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, if any,
to the date of such deposit (in the case of Securities that have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been met.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money or
Eligible Obligations have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section or if money or Eligible Obligations shall have
been deposited with or received by the Trustee pursuant to Section 403, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
(b) Upon satisfaction and discharge of this Indenture as
provided in this Section 401, the Trustee shall assign, transfer and turn over
to the Company, subject to the lien provided by Section 607, any and all money,
securities and other property then held by the Trustee for the benefit of the
Holders of the Securities other than money and Eligible Obligations held by the
Trustee pursuant to Section 402.
Section 402. Application of Trust Money. (a) Neither the Eligible
Obligations nor the money deposited with the Trustee pursuant to Section 403(e),
nor the principal or interest payments on any such Eligible Obligations, shall
be withdrawn or used for any purpose other than, and shall be held in trust for,
the payment of the principal of and premium, if any, and interest, if any, on
the Securities or portions of principal amount thereof in respect of which such
deposit was made, all subject, however, to the provisions of Section 1003;
provided, however, that, so long as there shall not have occurred and be
continuing an Event of Default, any cash received from such principal or
interest payments on such Eligible Obligations deposited with the Trustee, if
not then needed for such purpose, shall, to the extent practicable, be invested
in Eligible Obligations of the type described in Section 403(e)(2)(A) maturing
at such times and in such amounts as shall be sufficient to pay when due the
principal of and premium, if any, and interest, if any, due and to become due on
such Securities or portions thereof on and prior to the Maturity thereof, and
interest earned from such reinvestment shall be paid over to the Company as
received by the Trustee, free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 607; and provided, further, that,
so long as there shall not have occurred and be continuing an Event of Default,
any moneys held by the Trustee in accordance with this Section on the Maturity
of all such Securities in excess of the amount required to pay the principal of
and premium, if any, and interest, if any, then due on such Securities shall be
paid over to the Company free and clear of any trust, lien or pledge under this
Indenture except the lien provided by Section 607.
29
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against Eligible
Obligations deposited pursuant to Section 401, 403 or 1007 or the interest and
principal received in respect of such obligations other than any payable by or
on behalf of Holders.
Section 403. Satisfaction, Discharge and Defeasance of Securities of
Any Series. The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of any series or Tranche, or any
portion of the principal amount thereof, on the 91st day after the date of the
deposit referred to in subparagraph (e) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities of such series, shall be
satisfied and discharged and shall no longer be in effect (and the Trustee, at
the expense of the Company, shall at Company Request execute proper instruments
acknowledging the same), except as to:
(a) the rights of Holders of Securities of such series to
receive, solely from the trust funds described in subparagraph (e)
hereof, (i) payment of the principal of (and premium, if any) and each
installment of principal of (and premium, if any) or interest, if any,
on the Outstanding Securities of such series, or portions thereof, on
the Stated Maturity of such principal or installment of principal or
interest or to and including the Redemption Date irrevocably designated
by the Company pursuant to subparagraph (k) hereof and (ii) the benefit
of any mandatory sinking fund payments applicable to the Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities of such
series;
(b) the obligations of the Company and the Trustee with
respect to such Securities of such series under Sections 304, 305, 306,
614, 1002, 1003 and 1203 and, if the Company shall have irrevocably
designated a Redemption Date pursuant to subparagraph (k) hereof,
Sections 1104 and 1106; and
(c) the Company's obligations with respect to the Trustee
under Section 607; provided that, the following conditions shall have
been satisfied:
(d) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 402) with the Trustee 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) (A) Eligible Obligations which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide on or before the due date of any payment
referred to in clause (x) or (y) of this subparagraph (e) money in an
amount or (B) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee,
to pay and discharge (x) the principal of (and premium, if any) and
each installment of principal (and premium, if any) and interest, if
any, on such Securities on the Stated Maturity of such principal or
installment of principal or interest or to and including the Redemption
Date irrevocably designated by the Company pursuant to subparagraph (k)
hereof and (y) any mandatory sinking fund payments applicable to the
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Securities of such series on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of the
Securities of such series;
(e) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(f) such provision would not cause any Outstanding Securities
of such series then listed on the New York Stock Exchange or other
securities exchange to be delisted as a result thereof;
(g) no Event of Default or event that with notice or lapse of
time would become an Event of Default with respect to the Securities of
such series has occurred and is continuing on the date of such deposit
or during the period ending on the 91st day after such date;
(h) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel to the effect that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) there has been a change in law or
regulation occurring after the date hereof, to the effect that Holders
of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on
the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred;
(i) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with; and
(j) if the Company has deposited or caused to be deposited
money or Eligible Obligations to pay or discharge the principal of (and
premium, if any) and interest on the Outstanding Securities of a series
to and including a Redemption Date pursuant to subparagraph (e) hereof,
such Redemption Date shall be irrevocably designated by a Board
Resolution delivered to the Trustee on or prior to the date of deposit
of such money or Eligible Obligations, and such Board Resolution shall
be accompanied by an irrevocable Company Request that the Trustee give
notice of such redemption in the name and at the expense of the Company
not less than 30 nor more than 60 days prior to such Redemption Date in
accordance with Section 1104.
ARTICLE V
REMEDIES
Section 501. Events of Default. "Event of Default", wherever used
herein with respect to Securities of any series, means any one of the following
events:
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(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; provided, however, that a valid
extension of the interest payment period by the Company as contemplated
in Section 312 shall not constitute a failure to pay interest for this
purpose; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series
of Securities other than that series), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of such series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
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admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of such series as contemplated by Sections 301 and 901(3).
Section 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to any series or Tranche of Senior Securities at
the time Outstanding occurs and is continuing, then, unless the principal of and
interest on such series or Tranche of Senior Securities has already become due
and payable, either the Trustee or the Holders of a majority in aggregate
principal amount of such series or Tranche of Senior Securities then
outstanding, by notice in writing to the Company (and to the Trustee if given by
such Holders), may declare the principal of and interest on all the Senior
Securities of such series or Tranche (or if any of the Senior Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount of such Securities as may be specified in the terms thereof) to
be due and payable immediately and upon any such declaration the same shall
become immediately due and payable, anything in this Indenture or in the Senior
Securities of such series or Tranche contained to the contrary notwithstanding;
provided, however, that if an Event of Default has occurred and is continuing
with respect to more than one series or Tranche of Senior Securities, the
Trustee or the Holders of a majority in aggregate principal amount of the
Outstanding Senior Securities (or if any of the Senior Securities are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of all such
series or Tranches (voting as one class) may make such declaration of
acceleration, and not the Holders of the Senior Securities of any one of such
series or Tranches.
If an Event of Default with respect to any series or Tranche of
Subordinated Securities at the time Outstanding occurs and is continuing, then,
unless the principal of and interest on such series or Tranche of Subordinated
Securities has already become due and payable, either the Trustee or the Holders
of a majority in aggregate principal amount of the Subordinated Securities of
such series or Tranche then outstanding, by notice in writing to the Company
(and to the Trustee if given by such Holders), may declare the principal of and
interest on all the Subordinated Securities of such series or Tranche (or if any
of the Subordinated Securities are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) to be due and payable immediately and upon any
such declaration the same shall become immediately due and payable, anything in
this Indenture or in the Subordinated Securities of such series contained to the
contrary notwithstanding; provided, however, that if an Event of Default has
occurred and is continuing with respect to more than one series or Tranche of
Subordinated Securities, the Trustee or the Holders of a majority in aggregate
principal amount of the Outstanding Subordinated Securities (or if any of the
Subordinated Securities are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all such series or Tranche (voting as one
class) may make such declaration of acceleration, and not the Holders of the
Subordinated Securities of any one of such series or Tranches.
In the case of any declaration of acceleration of the Stated Maturity
of any Original Issue Discount Securities or Indexed Securities of a series, the
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Company shall furnish the Trustee with an Officer's Certificate stating the
amount of principal to be paid to a Holder of $1,000 principal amount of such
Securities.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Event or Events of Default giving rise to such declaration
of acceleration shall, without further act, be deemed to have been waived, and
such declaration and its consequences shall, without further act, be deemed to
have been rescinded and annulled, if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of any
such series,
(B) the principal of (and premium, if any, on) any
Securities of such series that have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all amounts due to the Trustee under Section 607;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Event of Default or
impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. If an Event of Default described in clause (1) or (2) of Section 501
has occurred and is continuing, the Company shall, upon demand of the Trustee,
pay to it, for the benefit of the Holders of the Securities of the series with
respect to which such Event of Default has occurred, the whole amount then due
and payable on such Securities for principal (and premium, if any) and interest,
if any, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
any amounts due to the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
34
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee deems most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest, if any, owing and unpaid
in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts due to the Trustee under
Section 607 and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, if the Trustee consents to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
the Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the amounts due
to the Trustee under Section 607, be for the ratable benefit of the Holders of
the Securities and coupons in respect of which such judgment has been recovered.
35
Section 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee, and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, if any, upon
presentation of the Securities in respect of which or for the benefit of which
such money shall have been collected and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the
Securities in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, if any, respectively; and
THIRD: The balance, if any, to the Company.
The Trustee may fix a record date (with respect to Registered
Securities) and payment date for any such payment to Holders of Securities.
Section 507. Limitation on Suits. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of all series of Senior
Securities in respect of which an Event of Default has occurred and is
continuing, considered as one class, shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder if such holder is a Holder
of Senior Securities or the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of all series
of Subordinated Securities in respect of which an Event of Default has
occurred and is continuing, considered as one class, shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder if such
Holder is a Holder of Subordinated Securities;
(3) such Holder or Holders have offered to the Trustee
indemnity against the reasonable costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities of
all series;
36
it being understood and intended that (subject to Section 508) no one or more of
such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other of such Holders, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date, or, in the case of repayment at the option
of the Holder, on the Repayment Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
Section 509. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and such Holder shall continue as though no such proceeding had been
instituted.
Section 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders. If an Event of Default shall have
occurred and be continuing in respect of a series of Securities, the Holders of
a majority in aggregate principal amount of the Outstanding Securities of such
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such series
or Tranche; provided, however, that if an Event of Default has occurred and is
37
continuing with respect to more than one series of Senior Securities, the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of all such series, considered as one class, shall have the right to
make such direction, an not the Holders of the Senior Securities of any one of
such series, and if an Event of Default has occurred and is continuing with
respect to more than one series of Subordinated Securities, the Holders of a
majority in aggregate principal amount of all such series, considered as one
class, shall have the right to make such direction, and not the Holders of the
Subordinated Securities of any one of such series; provided, further that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences;
provided that if any such past default has occurred with respect to more than
one series of Senior Securities, the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all such series, considered as
one class, may make such waiver, and not the Holders of any one of such series;
provided further that if any such past default has occurred with respect to more
than one series of Subordinated Securities, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all such series,
considered as one class, may make such waiver, and not the Holders of any one of
such series, in each case except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof that under
Section 902 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs. All parties to this Indenture
agree, and each Holder 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, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the Outstanding Securities of all
series in respect of which such suit may be brought, considered as one class, or
to any suit instituted by any Holder for the enforcement of the payment of the
38
principal of (or premium, if any) or interest, if any, on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date, or, in the case of
repayment at the option of the Holder, on or after the Repayment Date).
Section 515. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default with respect to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) If an Event of Default with respect to Securities of any
series has occurred and is continuing, the Trustee shall exercise, with respect
to Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own wilful misconduct, except that
(1) this subsection shall not be construed to limit the effect
of sub-section (a) of this Section;
39
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of any one or more series, as provided
herein, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it has reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 602. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series entitled to
receive reports pursuant to Section 704(3) (and, if Unregistered Securities of
that series are outstanding, shall cause to be published at least once in an
Authorized Newspaper in The City of New York and, if Securities of that series
are listed on any stock exchange outside of the United States, in the city in
which such stock exchange is located) notice of such default hereunder known to
the Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest, if any, on any Security of such series or
in the payment of any sinking fund installment with respect to Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 75 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event that is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee. Subject to the provisions of
Section 601 and to the applicable provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
40
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
or as otherwise expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate or a certificate of an officer or officers delivered
pursuant to Section 301 and such Officer's Certificate or certificate
of an officer or officers, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any
action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall (subject to applicable legal
requirements) be entitled to examine, during normal business hours, the
books, records and premises of the Company, personally or by agent or
attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; no Depository or Paying Agent
shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any of them.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities of any series or any coupons.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof. The Trustee
shall not be responsible for and makes no representations as to the Company's
ability or authority to issue the Unregistered Securities or the lawfulness
thereof.
41
Section 605. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company or the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 606. Money Held in Trust. Money held by the Trustee or by any
Paying Agent (other than the Company if the Company shall act as Paying Agent)
in trust hereunder need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any Paying Agent shall be liable for
interest on any money received by it hereunder except as expressly provided
herein or otherwise agreed with the Company.
Section 607. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, wilful misconduct or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense reasonably incurred without
negligence, wilful misconduct or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder or performance of its duties hereunder, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Securities and any
coupons upon all property and funds held or collected by the Trustee as such,
except property and funds held in trust for the payment of principal of (and
premium, if any) or interest, if any, on particular Securities or any coupons.
Section 608. Disqualification; Conflicting Interests. If the Trustee
has or acquires any conflicting interest within the meaning of the Trust
Indenture Act with respect to the Securities of any series, it shall either
eliminate such conflicting interest or resign to the extent, in the manner and
with the effect, and subject to the conditions, provided in the Trust Indenture
Act and this Indenture. For purposes of Section 310(b)(1) of the Trust Indenture
Act and to the extent permitted thereby, the Trustee, in its capacity as trustee
42
in respect of the equally ranked and unsecured Securities of any series, shall
not be deemed to have a conflicting interest arising from its capacity as
trustee in respect of the equally ranked and unsecured Securities of any other
series under this Indenture or any securities issued under the Indenture dated
as of [ ] between the Company and the Trustee [specifically describe
other outstanding indentures with the Trustee].
Section 609. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder that shall be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia (or such other Person as may be 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,
subject to supervision or examination by federal or state authority and
qualified and eligible under this Article, provided that, neither the Company
nor any Affiliate of the Company may serve as Trustee of any Securities. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such 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 the Trustee ceases to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 has not been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Company may at any time by a Board Resolution remove
the Trustee with respect to the Securities of any or all series.
(d) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(e) If at any time:
(1) the Trustee fails to comply with Section 608 with
respect to the Securities of any series, after written request therefor
by the Company or by any Holder who has been a bona fide Holder of a
Security of such series for at least six months, or
43
(2) the Trustee ceases to be eligible under Section
609 and fails to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee becomes incapable of acting or
becomes adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property is appointed or any public officer takes 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, subject to Section 514, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(f) If the Trustee resigns, is removed or becomes incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series is appointed by
Act of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series has been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, subject to Section 514, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 704(3) and, if any Unregistered Securities are outstanding, by
publishing notice of such event once in an Authorized Newspaper in The City of
New York and, if any Unregistered Securities are listed on any stock exchange
outside of the United States, in the city in which such stock exchange is
located. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
(h) All provisions of this Section except subparagraph (d) and
Section 611(b) (except for the last clause, after omitting the words "after
deducting all amounts owed to the retiring Trustee pursuant to Section 607,"
which shall apply) shall apply also to any Paying Agent located outside the
United States and its possessions.
44
Section 611. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to the Securities of
all series, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its lien provided for
in Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee, after deducting all amounts owed to the retiring Trustee
pursuant to Section 607, all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
45
Section 612. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
any Securities shall not have been authenticated by such predecessor Trustee,
any such successor Trustee may authenticate and deliver such Securities, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 613. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated therein.
Section 614. Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding the Trustee may appoint an Authenticating
Agent or Agents (which may include any Person that owns, directly or indirectly,
all of the capital stock of the Trustee or a corporation that is a wholly-owned
subsidiary of the Trustee or of such other Person) with respect to one or more
series of Securities, or any Tranche thereof, that shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series or Tranche
issued upon original issuance, exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. The
Trustee shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities of the series or Tranche with
respect to which such Authenticating Agent will serve, and which are entitled to
receive reports pursuant to Section 704(3) and, if any Unregistered Securities
are outstanding, by publishing notice of such event once in an Authorized
Newspaper in The City of New York and, if any Unregistered Securities are listed
on any stock exchange outside of the United States, in the city in which such
stock exchange is located. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any state thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $1,000,000 and subject to
supervision or examination by federal or state authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
46
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent ceases to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign with respect to one or more series
of Securities at any time by giving written notice thereof to the Trustee and to
the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent with respect to one or more series of Securities by giving
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent ceases to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent that is acceptable to the Company and shall provide notice of such
appointment to all Holders of Securities of the series or Tranche with respect
to which such Authenticating Agent will serve, as provided in paragraph (a) of
this Section. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section. An Authenticating Agent
appointed pursuant to this Section shall be entitled to rely on Sections 111,
308, 604 and 605 hereunder.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to the Securities of one or more series,
or any Tranche thereof, is made pursuant to this Section, the Securities of such
series or Tranche may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of authentication in the
following form:
47
This is one of the Securities of the series designated pursuant to and
issued under the within-mentioned Indenture.
[ ]
As Trustee
By
-------------------------------------------------
As Authenticating Agent on behalf of the Trustee
By
-------------------------------------------------
Authorized Officer of Authenticating Agent
Dated:
---------------------------
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
(which, if so requested by the Company, may be an Affiliate of the Company)
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than the 15th day after each
Regular Record Date for each series of Registered Securities at the
time Outstanding or on June 30 and December 31 of each year with
respect to each series of Securities for which there are no Regular
Record Dates, a list, in such form as the Trustee may reasonably
require, containing all the information in the possession or control of
the Company, or any of its Paying Agents other than the Trustee, of the
names and addresses of the Holders of Registered Securities of such
series, including Holders of interests in Global Securities, as of such
preceding Regular Record Date or on June 15 or December 15, as the case
may be, or, in the case of a series of non-interest bearing Securities,
on a date to be determined as contemplated pursuant to Section 301, 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;
48
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar for Registered Securities other than Global
Securities.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Security Registrar or Paying Agent.
The Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and is accompanied
by a copy of the form of proxy or other communication that such applicants
propose to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section 702(a),
or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section 702(a),
and as to the approximate cost of mailing to such Holders the form of
proxy or other communication, if any, specified in such application.
If the Trustee elects not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication that is specified in such request, with
reasonable promptness after a tender to the Trustee by the applicants 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
interest of the Holders 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, enters 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 finds, after notice and opportunity for hearing, that all the
objections so sustained have been met and enters an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender by such
applicants; otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
49
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 702(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
Section 703. Reports by Trustee. (a) Within 60 days after May 15 of
each year commencing with the year 2003, the Trustee shall transmit by mail to
all Holders of Registered Securities of any series, as their names and addresses
appear in the Security Register and to all other Holders who are entitled to
receive reports pursuant to Section 704(3), a brief report dated as of such May
15 with respect to any of the following events which may have occurred within
the previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of such series or any related coupons, on any
property or funds held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such advances if such advances
so remaining unpaid aggregate not more than one-half of 1% of the principal
amount of the Securities of such series Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the Securities of
such series) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor relationship arising in
any manner described in paragraphs (2), (3), (4) or (6) of Section 311(b) of the
Trust Indenture Act;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has
not previously reported; and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its opinion
materially affects the Securities of such series, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 602.
(b) The Trustee shall transmit by mail to all Holders of
Registered Securities of any series, as their names and addresses appear in the
Security Register and to all Holders who are entitled to receive reports
50
pursuant to Section 704(3), a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
instrument) for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of such series, on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Securities of such series
Outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee in writing when any Securities are listed on any
stock exchange.
Section 704. Reports by Company. The Company shall:
(1) file with the Trustee, within 45 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall 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 that may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to all Holders of Registered Securities,
as their names and addresses appear in the Security Register, to such
Holders of Unregistered Securities as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose and to each Holder whose name and address is
then preserved on the Trustee's list pursuant to the first sentence of
Section 702(a), within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc. Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or
convey, transfer or lease all or substantially all of its properties and assets
to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person that acquires by conveyance,
transfer or lease the properties and assets of the Company
substantially as an entirety shall be a Person organized and existing
under the laws of the United States of America, any State thereof or
the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the
Outstanding Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default and no event that, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing;
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
met.
Section 802. Successor Corporation Substituted. Upon any consolidation
or merger or any conveyance, transfer or lease of all or substantially all the
properties and assets of the Company in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein and thereafter, in the case of a conveyance,
transfer or lease of properties and assets of the Company substantially as an
entirety, such conveyance, transfer or lease shall have the effect of releasing
the Person named as the "Company" in the first paragraph of this instrument or
any successor corporation which shall theretofore have become such in the manner
prescribed in this Article from its liability as obligor and maker on any of the
Securities.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities, or any Tranche thereof
(and if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included solely for the benefit of such series), or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, or to add any new provision to this Indenture, in respect of
one or more series or Tranches of Securities; provided, however, that
any such change, elimination or addition (A) shall neither (i) apply to
any Security Outstanding on the date of such indenture supplemental
hereto nor (ii) modify the rights of the Holder of any such Security
with respect to such provision in effect prior to the date of such
indenture supplemental hereto or (B) shall become effective only when
no Security of such series or Tranche remains Outstanding; or
(6) to secure the Securities pursuant to the requirements of
any covenant on liens in respect of such series of Securities or
otherwise; or
(7) to establish for the issuance of and establish the form or
terms and conditions of Securities of any series or Tranche as
permitted by Section 301, and to establish the form of any certificates
required to be furnished pursuant to the terms of this Indenture or any
series of Securities; or
(8) to provide for uncertificated Securities in addition to or
in place of all, or any series or Tranche of, certificated Securities;
or
(9) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee or co-trustee with respect
to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more than
one Trustee, pursuant to the requirements of Section 611(b); or
(10) to change any place or places where (a) the principal of
or premium, if any, or interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (b) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration or transfer, (c) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (d) notices and
demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
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(11) to cure any ambiguity, to correct or supplement any
provision herein that may be defective or inconsistent with any other
provision herein, provided such action shall not adversely affect the
interests of the Holders of Securities of any series or Tranche in any
material respect; or
(12) to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of any Securities of any
series or Tranche Outstanding on the date of such indenture
supplemental hereto.
Without limiting the generality of the foregoing, if the Trust
Indenture Act as in effect at the date of the execution and delivery of this
Indenture or at any time thereafter becomes amended and
(x) if any such amendment requires one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or by
operation of law is deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Indenture shall be deemed to have been amended
so as to conform to such amendment to the Trust Indenture Act, and the Company
and the Trustee may, without the consent of any Holders, enter into an indenture
supplemental hereto to effect or evidence such changes or additional provisions;
or
(y) if any such amendment permits one or more changes to, or the
elimination of, any provisions hereof that, at the date hereof or at any time
thereafter, are required by the Trust Indenture Act to be contained herein (or
if it is no longer required by the TIA for the Indenture to contain one or more
provisions), this Indenture shall be deemed to have been amended to effect such
changes or elimination, and the Company and the Trustee may, without the consent
of any Holders, enter into an indenture supplemental hereto to evidence such
amendment hereof; or
(z) if, by reason of any such amendment, it shall be no longer
necessary for this Indenture to contain one or more provisions that, at the date
of the execution and delivery hereof, are required by the Trust Indenture Act to
be contained herein, the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to effect the elimination
of such provisions.
Section 902. Supplemental Indentures With Consent of Holders. (a)
Except as set forth in paragraph (c) below, with the consent of the Holders of
not less than a majority in aggregate principal amount of the Senior Securities
of all series then Outstanding (considered as one class), the Company, when
authorized by a resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to a Company Order), and the Trustee may, from time to time and at any time,
54
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Securities of each such series or
Tranche or of the Coupons appertaining to such Securities or of modifying in any
manner the rights of the Holders of Securities of such series or Tranche under
this Indenture; provided, however, that if there are Senior Securities of more
than one series Outstanding hereunder and if a proposed supplemental indenture
shall directly affect the rights of the Holders of Senior Securities of one or
more, but less than all, of such series, then the consent only of the Holders of
a majority in aggregate principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be required; and
provided, further, that if the Securities of any series have been issued in more
than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Senior Securities of one or more, but less
than all, of such Tranches, then the consent only of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required.
(b) Except as set forth in paragraph (c) below, with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Subordinated Securities of all series then Outstanding (considered as one
class), the Company, when authorized by a resolution of its Board of Directors
(which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in
accordance with or pursuant to a Company Order), and the Trustee may, from time
to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series or of the Coupons appertaining to such Securities
or of modifying in any manner the rights of the Holders of Securities of such
series or Tranche under this Indenture; provided, however, that if there are
Subordinated Securities of more than one series Outstanding hereunder and if a
proposed supplemental indenture shall directly affect the rights of the Holders
of Subordinated Securities of one or more, but less than all, of such series,
then the consent only of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of all series so directly affected, considered as
one class, shall be required; and provided, further, that if the Securities of
any series have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Subordinated Securities of one or more, but less than all, of such Tranches,
then the consent only of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of all Tranches so directly affected, considered
as one class, shall be required.
(c) No such supplemental indenture or waiver shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon (or the amount
of any installment of interest thereon) or any premium payable upon the
redemption thereof, or change the method of calculating the rate of
interest thereon, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
55
502, or change the coin or currency (or other property) in which, any
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date, or, in the case of repayment at the
option of the Holders, on or after the Repayment Date), or modify any
provisions of this Indenture with respect to the conversion or exchange
of the Securities into Securities of another series or into any other
debt or equity securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, or any Tranche thereof, the
consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver
of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this
indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1007, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1007, or the deletion of this proviso, in accordance with
the requirements of Sections 611(b) and 901(9).
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or one or more
Tranches thereof, or that modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof. A waiver by a
Holder of such Holder's rights to consent under this Section shall be deemed to
be a consent of such Holder.
Section 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby. Any
supplemental indenture permitted by this Article may restate this Indenture in
its entirety, and, upon the execution and delivery thereof, any such restatement
shall supersede this Indenture as theretofore in effect for all purposes.
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Section 905. Conformity With Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof, authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company so determines, new Securities of any series, or any Tranche thereof, and
any appertaining coupons so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series or Tranche and any
appertaining coupons.
Section 907. Revocation and Effect of Consents. Until an amendment or
waiver becomes effective, a consent to it by a Holder of a Security is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security if the Trustee receives the notice of revocation before
the date on which the Trustee receives an Officer's Certificate certifying that
the Holders of the requisite principal amount of Securities have consented to
the amendment or waiver. After an amendment or waiver becomes effective, it
shall bind every Holder of each series of Securities affected by such amendment
or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those persons who were Holders at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date.
After an amendment or waiver becomes effective it shall bind every
Holder, unless it is of the type described in any of clauses (1) through (3) of
Section 902(c). In such case, the amendment or waiver shall bind each Holder of
a Security who has consented to it and every subsequent Holder of a Security
that evidences the same debt as the consenting Holder's Security.
Section 908. Modification Without Supplemental Indenture. If the terms
of any particular series of Securities have been established in a Board
Resolution or an Officer's Certificate as contemplated by Section 301, and not
in an indenture supplemental hereto, additions to, changes in or the elimination
of any of such terms may be effected by means of a supplemental Board Resolution
or Officer's Certificate, as the case may be, delivered to, and accepted by, the
Trustee; provided, however, that such supplemental Board Resolution or Officer's
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture that would be required to be
57
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officer's Certificate shall be deemed to be a "supplemental indenture" for
purposes of Sections 904 and 906.
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and Interest. Subject to
the following provisions, the Company will pay to the Trustee the amounts, in
such coin or currency as is at the time legal tender for the payment of public
or private debt, in the manner, at the times and for the purposes set forth
herein and in the text of the Securities for each series, and the Company hereby
authorizes and directs the Trustee from funds so paid to it to make or cause to
be made payment of the principal of and premium, if any, and interest, if any,
on the Securities and coupons of each series as set forth herein and in the text
of such Securities and coupons. Unless otherwise provided in the Securities of a
series, the Trustee will arrange directly with any Paying Agents for the
payment, or the Trustee will make payment, from funds furnished by the Company,
of the principal of and premium, if any, and interest, if any, on the Securities
and coupons of each series by check or draft.
Unless otherwise provided in the Securities of a series, interest, if
any, on Registered Securities of a series shall be paid by check or draft on
each Interest Payment Date for such series to the Holder thereof at the close of
business on the relevant record dates specified in the Securities of such
series. The Company may pay such interest by check or draft mailed to such
Holder's address as it appears on the register for Securities of such series.
Unless otherwise provided in the Securities of a series, principal of Registered
Securities shall be payable by check or draft and only against presentation and
surrender of such Registered Securities at the office of the Paying Agent,
unless the Company shall have otherwise instructed the Trustee in writing.
Unless otherwise provided in the Securities of a series, (i) interest,
if any, on Unregistered Securities shall be paid by check or draft and only
against presentation and surrender of the coupons for such interest installments
as are evidenced thereby as they mature and (ii) original issue discount (as
defined in Section 1273 of the Code), if any, on Unregistered Securities shall
be paid by check or draft and only against presentation and surrender of such
Securities, in either case at the office of a Paying Agent located outside of
the United States and its possessions, unless the Company has otherwise
instructed the Trustee in an Officer's Certificate. Unless otherwise provided in
the Securities of a series, principal of and premium, if any, of Unregistered
Securities shall be paid by check or draft and only against presentation and
surrender of such Securities as provided in the Securities of a series. If at
the time a payment of principal of and premium, if any, or interest, if any, or
original issue discount, if any, on an Unregistered Security or coupon becomes
due and the payment of the full amount so payable at the office or offices of
all the Paying Agents outside the United States and its possessions is illegal
or effectively precluded because of the imposition of exchange controls or other
similar restrictions on the payment of such amount in United States currency,
then the Company may instruct the Trustee in an Officer's Certificate to make
such payments at the office of a Paying Agent located in the United States. The
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Company hereby covenants and agrees that it shall not so instruct the Trustee
with respect to payment in the United States if such payment would cause such
Unregistered Security to be treated as a "registration-required obligation"
under United States law and regulations.
At the election of the Company, any payments by the Company provided
for in this Indenture or in any of the Securities may be made by electronic
funds transfer.
Section 1002. Maintenance of Office or Agency. The Company will
maintain in each Place of Payment for any series of Securities, or any Tranche
thereof, an office or agency where Registered Securities, or any Tranche
thereof, of that series may be surrendered for registration of transfer or
exchange and a Place of Payment where (subject to Sections 305 and 307)
Securities may be presented for payment or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. Unless otherwise specified pursuant to Section 301
with respect to any such series, the Company shall maintain such offices or
agencies in connection with each series in the Borough of Manhattan, The City of
New York, State of New York. With respect to any series of Securities issued in
whole or in part as Unregistered Securities, the Company shall maintain one or
more Paying Agents located outside the United States and its possessions and
shall maintain such Paying Agents for a period of one year after the principal
of such Unregistered Securities has become due and payable. During any period
thereafter for which it is necessary in order to conform to United States tax
law or regulations, the Company will maintain a Paying Agent outside the United
States and its possessions to which the Unregistered Securities or coupons
appertaining thereto may be presented for payment and will provide the necessary
funds therefor to such Paying Agent upon reasonable notice. The Security
Registrar shall keep a register with respect to each series of Securities issued
in whole or in part as Registered Securities and to their transfer and exchange.
The Company may appoint one or more co-Security Registrars acceptable to the
Trustee and one or more additional Paying Agents for each series of Securities,
and the Company may terminate the appointment of any co-Security Registrar or
Paying Agent at any time upon written notice. The term "Security Registrar"
includes any co-Security Registrar. The term "Paying Agent" includes any
additional Paying Agent. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. Subject to Section 305, if
the Company fails to maintain a Security Registrar or Paying Agent, the Trustee
shall act as such. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company fails to maintain any such required office or agency or
fails to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
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In the case of Original Issue Discount Securities of a series, the
Company shall, prior to any Redemption Date or any Repayment Date applicable
thereto, furnish the Trustee with an Officer's Certificate stating the amount of
principal to be paid to a Holder of $1,000 principal amount of such Securities.
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at any office of the Company in which
event the Company shlal perform all functions to be performed at such office or
agency.
Section 1003. Money for Securities Payments to Be Held in Trust. If the
Company at any time acts as its own Paying Agent with respect to any series of
Securities, or any Tranche thereof, it will, on or before each due date of the
principal of (and premium, if any) or interest, if any, on any of such
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums are paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company has one or more Paying Agents for any series of
Securities, it will, on or prior to (and if on, then before 11:00 a.m. (New York
City time)) each due date of the principal of (and premium, if any) or interest,
if any, on such Securities, deposit with a Paying Agent a sum sufficient (in
immediately available funds, if payment is made on the due date) to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities,
or any Tranche thereof, other than the Trustee, to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest, if any, on Securities of such
series or Tranche in trust for the benefit of the Persons entitled
thereto until such sums are paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series or Tranche) in the
making of any payment of principal (and premium, if any) or interest,
if any, on the Securities of such series or Tranche; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee in respect of Eligible Obligations deposited with the Trustee
pursuant to Section 401, 403 or 1007, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or interest, if any, on
any Security of any series and remaining unclaimed for two years (or such
shorter period for the return of such moneys to the Company under applicable
abandoned property laws) after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 1004. Corporate Existence. Subject to Article VIII, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be required to
preserve any such right or franchise if, in the judgment of the Company, the
preservation thereof is no longer desirable in the conduct of the business of
the Company and the loss thereof is not disadvantageous in any material respect
to the Holders of Securities of any series or Tranche in any material respect.
Section 1005. Defeasance of Certain Obligations. The Company may omit
to comply with its obligations under the covenants contained in Sections 1002,
1004 (except with respect to maintaining its corporate existence), 1006, 1008
and Article VIII with respect to any Security or Securities of any series or
Tranche or any portion of the principal amount thereof (and in respect of any
term, provision or condition set forth in the covenants or restrictions
specified for such Securities pursuant to Section 301, in any supplemental
indenture, Board Resolution or Officer's Certificate establishing such
Security), provided that the following conditions shall have been satisfied:
(1) With reference to this Section, the Company has deposited
or caused to be irrevocably deposited (except as provided in Section 402) with
the Trustee as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities or portions
thereof, (i) money in an amount, or (ii) if Securities of such series are not
subject to repayment at the option of Holders, (A) Eligible 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 referred to in clause (x) or (y) of this subparagraph (1) money in an
amount, or (B) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge (x)
the principal of (and premium, if any) and each installment of principal (and
premium, if any) and interest, if any, on the Outstanding Securities of such
61
series or portions thereof on the Stated Maturity of such principal or
installment of principal or premium or interest or to and including the
Redemption Date irrevocably designated by the Company pursuant to subparagraph
(7) of this Section and (y) any mandatory sinking fund payments applicable to
the Securities of such series or portions thereof on the day on which such
payments are due and payable in accordance with the terms of the Indenture and
of such Securities or portions thereof;
(2) Such deposit shall not, as specified in an Opinion of
Counsel, cause the Trustee with respect to the Securities of such series to have
a conflicting interest as defined in Section 608 and for purposes of the Trust
Indenture Act with respect to the Securities of such series;
(3) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) No Event of Default or event which with 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 and no
Event of Default specified in Section 501(6) or (7) shall have occurred at any
time from the date of such deposit to the 91st calendar day thereafter (it being
understood that this condition to defeasance may not be satisfied until such
91st calendar day after the date of deposit);
(5) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series will not
realize income, gain or loss for federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be subject to federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit and defeasance had not occurred;
(6) The Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by this
Section have been met; and
(7) If the Company has deposited or caused to be deposited
money or Eligible Obligations to pay or discharge the principal of (and premium,
if any) and interest, if any, on the Outstanding Securities of such series or
portion thereof to and including a Redemption Date pursuant to subparagraph (1)
of this Section, such Redemption Date shall be irrevocably designated by a Board
Resolution delivered to the Trustee on or prior to the date of deposit of such
money or Eligible Obligations, and such Board Resolution shall be accompanied by
an irrevocable Company Request that the Trustee give notice of such redemption
in the name and at the expense of the Company not less than 30 nor more than 60
days prior to such Redemption Date in accordance with Section 1104.
Section 1006. Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, a written statement, which need not comply
with Section 102, signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company stating, as
to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
62
(2) to the best of his knowledge, based on such review, the
Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof.
Section 1007. Waiver of Certain Covenants. (a) The Company may omit in
any particular instance to comply with any term, provision or condition set
forth in (i) any additional covenants or restrictions specified with respect to
the Senior Securities of any series, or any Tranche thereof, as contemplated by
Section 301 if before the time for such compliance the Holders of not less than
a majority in aggregate principal amount (or such larger proportion as may be
required in respect of waiving a past default of any such additional covenant or
restriction) of the Outstanding Securities of all series and Tranches with
respect to which such covenant or restriction was so specified, considered as
one class, by Act of such Holders, either waives such compliance in such
instance or generally waive compliance with such term, provision or condition
and (ii) Sections 1002, 1004, 1006 and 1008 and Article VIII if before the time
for such compliance the Holders of at least a majority in principal amount of
Senior Securities Outstanding under this Indenture by Act of such Holders,
either waives such compliance in such instance or generally waive compliance
with such term, provision or condition; but, in the case of (i) or (ii) of this
paragraph (a), no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver
becomes 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.
(b) The Company may omit in any particular instance to comply
with any term, provision or condition set forth in (i) any additional covenants
or restrictions specified with respect to the Subordinated Securities of any
series, or any Tranche thereof, as contemplated by Section 301 if before the
time for such compliance the Holders of not less than a majority in aggregate
principal amount (or such larger proportion as may be required in respect of
waiving a past default of any such additional covenant or restriction) of the
Outstanding Securities of all series and Tranches with respect to which such
covenant or restriction was so specified, considered as one class, by Act of
such Holders, either waives such compliance in such instance or generally waive
compliance with such term, provision or condition and (ii) Sections 1002, 1004,
1006 and 1008 and Article VIII if before the time for such compliance the
Holders of at least a majority in principal amount of Subordinated Securities
Outstanding under this Indenture by Act of such Holders, either waives such
compliance in such instance or generally waive compliance with such term,
provision or condition; but, in the case of (i) or (ii) of this paragraph (b),
no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver becomes
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 1008. Maintenance of Properties. The Company shall cause (or,
with respect to property owned in common with others, make reasonable effort to
cause) all its properties used or useful in the conduct of its business to be
maintained and kept in good condition, repair and working order and shall cause
63
(or, with respect to property owned in common with others, make reasonable
effort to cause) to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as, in the judgment of the Company,
may be necessary so that the business carried on in connection therewith may be
properly conducted; provided, however, that nothing in this Section shall
prevent the Company from discontinuing, or causing the discontinuance of, the
operation and maintenance of any of its properties if, in the judgment of the
Company, such discontinuance (i) is desirable in the conduct of its business and
(ii) will not adversely affect the interests of the Holders of Securities of any
series or Tranche in any material respect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article. Securities of any series, or
any Tranche thereof, that are redeemable before their Stated Maturity (or, if
the principal of the Securities of any series is payable in installments, the
Stated Maturity of the final installment of the principal thereof) shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series or Tranche) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities shall be evidenced by a Board Resolution or
an Officer's Certificate. In case of any redemption at the election of the
Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice is satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series or
Tranche to be redeemed. In the case of any redemption of Securities (a) prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, or (b) pursuant to an election
of the Company that is subject to a condition specified in the terms of such
Securities the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of any series, or any Tranche thereof, are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Trustee not more than 45 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series or Tranche not previously called for
redemption, by such method as is provided for any particular series, or, in the
absence of any such provision, by such method as the Trustee deems fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
Tranche or any integral multiple thereof) of the principal amount of Securities
of such series or Tranche of a denomination larger than the minimum authorized
denomination for Securities of that series or Tranche; provided, however, that
if, as indicated in an Officer's Certificate, the Company has offered to
purchase all or any principal amount of the Securities then Outstanding of any
series, or any Tranche thereof, and less than all of such Securities as to which
such offer was made have been tendered to the Company for such purchase, the
Trustee, if so directed by Company Order, shall select for redemption all or any
principal amount of such Securities that have not been so tendered.
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The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities that has been or is to be
redeemed.
Section 1104. Notice of Redemption. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, notice of
redemption shall be given by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security Register.
If Unregistered Securities are to be redeemed, notice of redemption
shall be published in an Authorized Newspaper in The City of New York and, if
such Securities to be redeemed are listed on any stock exchange outside of the
United States, in the city in which such stock exchange is located, or in such
other city or cities as may be specified in the Securities, once in each of two
different calendar weeks, the first publication to be not less than 30 nor more
than 90 days before the redemption date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, or the formula pursuant to which the
Redemption Price is to be determined if the Redemption Price cannot be
determined at the time of notice is given,
(3) if less than all the Outstanding Securities of any series
or Tranche are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed, and the portion of the principal amount of any Security
to be redeemed in part and, in the case of any such Security of such
series to be redeemed in part, that, on and after the Redemption Date,
upon surrender of such Security, a new Security or Securities of such
series in principal amount equal to the remaining unpaid principal
amount thereof will be issued as provided in Section 1106,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities and all
unmatured coupons are to be surrendered for payment of the Redemption
Price and accrued interest, if any,
(6) that the redemption is for a sinking fund, if such is the
case,
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(7) the CUSIP numbers, if any, assigned to such Securities;
provided however, that such notice may state that no representation is
made as to the correctness of CUSIP numbers, and the redemption of such
Securities shall not be affected by any defect in or omission of such
number, and
(8) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any notice of redemption of Securities at the
election of the Company, unless, upon the giving of such notice, such Securities
are deemed to have been paid in accordance with Section 401, such notice may
state that such redemption shall be conditional upon the receipt by the Paying
Agent or Agents for such Securities, on or prior to the date fixed for such
redemption, of money sufficient to pay the principal of and premium, if any, and
interest, if any, on such Securities and that if such money has not been so
received such notice shall be of no force or effect and the Company shall not be
required to redeem such Securities. In the event that such notice of redemption
contains such a condition and such money is not so received, the redemption
shall not be made and within a reasonable time thereafter notice shall be given,
in the manner in which the notice of redemption was given, that such money was
not so received and such redemption was not required to be made, and the Paying
Agent or Agents for the Securities otherwise to have been redeemed shall
promptly return to the Holders thereof any of such Securities that had been
surrendered for payment upon such redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of non-satisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Security Registrar in the name and at the expense of the Company. Notice of
mandatory redemption of Securities shall be given by the Security Registrar in
the name and at the expense of the Company.
Section 1105. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, and the conditions, if any, set forth
in such notice having been satisfied, the Securities or portions thereof so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company defaults in the payment of the Redemption Price and accrued interest, if
any) such Securities, or portions thereof, if interest-bearing, shall cease to
bear interest. Upon surrender of any such Security for redemption in accordance
with said notice, such Security or portion thereof together with all unmatured
coupons, if any, shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date but in the case of
Unregistered Securities installments of interest due on or prior to the
Redemption Date will be payable to the bearers of the coupons for such interest
by check or draft upon surrender of such coupons; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
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Section 1106. Securities Redeemed in Part. Any Security that is to be
redeemed only in part shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his or her attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder, and of like tenor and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE XII
SINKING FUNDS
Section 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of any
series, or any Tranche thereof, except as otherwise specified as contemplated by
Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments With Securities.
The Company (1) may deliver Outstanding Securities of a series or Tranche (other
than any previously called for redemption) together, in the case of Unregistered
Securities, with all unmatured coupons appertaining thereto, in respect of which
a mandatory sinking fund payment is to be made and (2) may apply as a credit
Securities of such series or Tranche that have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund. Not less than
45 days prior to each sinking fund payment date for any series of Securities, or
any Tranche thereof, the Company will deliver to the Trustee an Officer's
67
Certificate specifying the amount of the next ensuing sinking fund payment for
that series or Tranche pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202 and will also deliver to the Trustee any
Securities to be so delivered. If the Company has not delivered such Officer's
Certificate and, to the extent applicable, all such Securities, the next
succeeding sinking fund payment for such series or Tranche shall be made
entirely in cash in the amount of the mandatory sinking fund payment. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1105 and 1106.
ARTICLE XIII
REPAYMENT OF SECURITIES AT OPTION OF HOLDERS
Section 1301. Applicability of Article. Securities of any series or
Tranche that are repayable before their Stated Maturity at the option of the
Holders shall be repayable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1302. Notice of Repayment Date. Notice of any Repayment Date
with respect to Securities of any series or Tranche thereof shall be given by
the Company not less than 45 nor more than 60 days prior to such Repayment Date
(or at such other times as may be specified for such repayment or repurchase
pursuant to Section 301 of this Indenture) to each Holder of Securities of such
series in accordance with Section 106.
The notice as to the Repayment Date shall state (unless otherwise
specified for such repayment or repurchase pursuant to Section 301 of this
Indenture):
(1) the Repayment Date, which date shall be no earlier than 30
days and no later than 60 days from the date on which such notice is
mailed;
(2) the principal amount of the Securities required to be
repaid or repurchased and the Repayment Price (or the formula pursuant
to which the Repayment Price is to be determined if the Repayment Price
cannot be determined at the time the notice is given);
(3) the place or places where such Securities are to be
surrendered for payment of the Repayment Price, and accrued interest,
if any, and the date by which Securities must be so surrendered in
order to be repaid or repurchased;
(4) that any Security not tendered or accepted for payment
shall continue to accrue interest;
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(5) that, unless the Company defaults in making such payment
or the Paying Agent is prohibited from paying such money to the Holders
on that date pursuant to the terms of this Indenture, Securities
accepted for payment pursuant to any such offer of repayment or
repurchase shall cease to accrue interest after the Repayment Date;
(6) that Holders electing to have a Security repaid or
purchased pursuant to such offer may elect to have all or any portion
of such Security purchased;
(7) that Holders electing to have a Security repaid or
repurchased pursuant to any such offer shall be required to surrender
the Security, with such customary documents of surrender and transfer
as the Company may reasonably request, duly completed, or transfer by
book-entry transfer, to the Company or the Paying Agent at the address
specified in the notice at least two Business Days prior to the
Repayment Date;
(8) that Holders shall be entitled to withdraw their election
if the Company or the Paying Agent, as the case may be, receives, not
later than the expiration of the offer to repay or repurchase, a
telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security the Holder delivered
for purchase and a statement that such Holder is withdrawing its
election to have such Security purchased;
(9) that, in the case of a repayment or repurchase of less
than all Outstanding Securities of a series or Tranche thereof, the
method of selection of Securities to be repaid or repurchased to be
applied by the Trustee if the principal amount of properly tendered
Securities exceeds the principal amount of the Securities to be repaid
or repurchased;
(10) that Holders whose Securities are purchased only in part
shall be issued new Securities of the same series or Tranche thereof
equal in principal amount to the unpurchased portion of the Securities
surrendered (or transferred by book-entry transfer); and
(11) the CUSIP or other identification number, if any, printed
on the Securities being repurchased and that no representation is made
as to the correctness or accuracy of the CUSIP or other identification
number, if any, listed in such notice or printed on the Securities.
Section 1303. Securities Payable on Repayment Date. The form of option
to elect repurchase or repayment having been delivered as specified in the form
of Security for such series, the Securities of such series or Tranche so to be
repaid (after application of the method of selection described pursuant to
clause (9) of Section 1302, if the principal amount of properly tendered
Secruities exceeds the principal amount of the Securities to be repaid or
repurchased) shall, on the Repayment Date, become due and payable at the
Repayment Price applicable thereto and from and after such date (unless the
Company defaults in the payment of the Repayment Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of any such
Security for repayment in accordance with said notice, such Security shall be
paid by the Company at the Repayment Price together with accrued interest, if
any, to the Repayment Date; provided, however, that if a Security is repaid or
repurchased on or after a Record Date but on or prior to the Stated Maturity of
any installments of interest, then any accrued and unpaid interest due on such
Stated Maturity shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
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If any Security is not paid upon surrender thereof for repayment, the
principal (and premium, if any) shall, until paid, bear interest from the
Repayment Date at the rate prescribed therefor in such Security.
Section 1304. Securities Repaid in Part. Any Security that by its terms
may be repaid in part at the option of the Holder and that is to be repaid only
in part shall be surrendered at any office or agency of the Company designated
for that purpose pursuant to Section 1002 (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his or her attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series, as provided in Section 305, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unrepaid portion of the principal of the Security so surrendered.
--------------------------------------------------------------------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
HEADWATERS INCORPORATED
[CORPORATE SEAL]
By
---------------------------------------------
Senior Vice President, Chief Financial Officer
Attest:
--------------------------
Secretary
[ ]
By
---------------------------------------------
Vice President
71
STATE OF UTAH )
) ss:
CITY OF ▇▇▇▇▇▇ AND COUNTY OF [ ])
On the day of [ ] 2002, before me personally came _______,
to me known, who, being by me duly sworn, did depose and say that he is
Secretary of HEADWATERS INCORPORATED, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instruments is such corporate seal;
that it was so affixed by authority of the By-Laws of said corporation, and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
72
Headwaters Incorporated
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of _______________, 2002
Trust Indenture Indenture Sections
Act Section
ss.310(a)(1) ................................................. 609
(a)(2) ................................................ 609
(a)(3) ................................................ Not Applicable
(a)(4) ................................................ Not Applicable
(a)(5) ................................................ 609
(b) .................................................... 608
610
ss.311(a) .................................................... 613(a)
(b) .................................................... 613(b)
(b)(2) ................................................ 703(a)(2)
703(b)
ss.312(a) .................................................... 701
702(a)
(b)..................................................... 702(b)
(c)..................................................... 702(c)
ss.313(a)...................................................... 703(a)
(b)..................................................... 703(b)
(c)..................................................... 703(a), 703(b)
(d)..................................................... 703(c)
ss.314(a)...................................................... 704
(b)..................................................... Not Applicable
(c)(1).................................................. 102
(c)(2).................................................. 102
(c)(3).................................................. Not Applicable
(d)..................................................... Not Applicable
(e)..................................................... 102
ss.315(a) ..................................................... 601(a)
(b)..................................................... 602
703(a)(7)
(c)..................................................... 601(b)
(d)..................................................... 601(c)
(d)(l).................................................. 601(a)(1)
(d)(2).................................................. 601(c)(2)
(d)(3).................................................. 601(c)(3)
(e)..................................................... 514
ss.316(a)...................................................... 101
(a)(1)(A)............................................... 502
512
(a)(1)(B)............................................... 513
(a)(2).................................................. Not Applicable
(b)..................................................... 508
(c)..................................................... 104(g)
ss.317(a)(l)................................................... 503
(a)(2).................................................. 504
(b)..................................................... 1003
ss.318(a) ..................................................... 107
-----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
73